Leading Expat Divorce Lawyer Team
New South Wales (“NSW”) Australia’s Series of Divorce Questions
- Ms Antonella Sanderson firstname.lastname@example.org
The Family Law Act 1975 (Cth) (“FLA”) governs divorce proceedings in Australia. As a Federal piece of legislation, it standardises divorce proceedings across all Australian States and Territories.
B. Divorce Process in NWS Australia
- regard Australia as their home and intend to live in Australia indefinitely; or
- are an Australian Citizen by birth, descent or by grant of Australian Citizenship; or
- ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
The FLA establishes a principle of no fault divorce in Australian law. The Court will not consider the reasons why the marriage has broken down, and therefore no evidence is required in relation to fault.
The only ground for divorce in Australia is that the marriage has broken down irretrievably, and there is no likelihood the parties will get back together. This is evidenced by a separation of twelve (12) months. Separation may include separation under one roof, and there is an allowance for a short reconciliation provided that it does not exceed three (3) months.
The Family Law Courts in Australia encourage parties to apply for a divorce online. There is the choice to bring an application jointly, or as an individual applicant.
By bringing a joint application, you and your spouse will sign an application form, provide evidence of your marriage, and lodge the document with the Court. Joint applications generally do not require an appearance before the Court at the time of consideration of granting the divorce, the matter is usually dealt with in Chambers by a Registrar and the Divorce Order is mailed or emailed to the parties.
A sole application is necessary in circumstances where the other spouse does not wish to participate in a joint application. The sole applicant will then be required to file an application, serve it on the other spouse and satisfy the Court that service has been effected in accordance with the Court’s Rules.
If there are no children under the age of 18 years old, then an appearance at the divorce hearing is not required and it will usually be dealt with by a Registrar in Chambers, if the other spouse does not file a response.
If there are children under the age of 18 years old, a sole applicant must appear before the Court at the divorce hearing.
C. Jurisdiction Requirements in NWS Australia
In order to qualify for a divorce in Australia, either spouse must be:-
- Born in Australia, or have become an Australian Citizen by descent, or become an Australian Citizen by a grant of Australian Citizenship; or
- Are currently living and have been living in Australia for at least 12 months.
Australian nationals living abroad will meet the requirement provided they are Australian Citizens. Otherwise, international residents living in Australia must be able to prove they have lived in Australia for at least the last 12 months and are lawfully present in Australia and intend to continue living in Australia at the time their application is filed. This might require providing evidence of your passport demonstrating the date of arrival at least one year prior and a valid or current visa.
D. Child Issues in NWS Australia
The FLA requires a Court to make a parenting Order that will have regard to the best interests of the child as the most important consideration. The FLA also puts a strong emphasis on protecting children from any exposure to harm or any risk of harm and emphasises the rights of the child to know and be care for by each of their parents, and to have a meaningful relationship with them.
Under the FLA, parents have “shared parental responsibility” – that is, they are responsible for the long-term care and welfare and development of their children under the age of 18 years old. There is no “custody” but the Court can make Orders allocating parental responsibility to one parent instead of the parents sharing that responsibility. The FLA uses very different language to “custody” and “access” – the Court can make an Order which specifies with which parent the child will live, and how the child will spend time with the other parent.
The FLA encourages the Court to consider making Orders for the children to spend equal time with both of their parents if that is reasonable and practical in the circumstances. It is not always possible to achieve that arrangement for many reasons, and therefore the Court needs to consider that the child shall live with one parent primarily, and consider spending substantial and significant time with the other parent.
This is usually a mix of weekday routine, weekends, special occasions and school holidays. There is no preference for a child to reside with the Mother set out in legislative provisions, however in circumstances where the Mother was traditionally the primary caregiver for the children, it is likely the Court will continue that role whilst ensuring that the children still have an opportunity to spend time with the Father and have a meaningful relationship with him.
- The location the child will live and how that will impact time with the other parent;
- Any changes to the child’s schooling arrangements;
- Changes to the child’s names; and
- International travel.
- Working out each parent’s child support income, which then allows the calculation of the combined income of the parents and each parent’s percentage of that income;
- Working out each parent’s percentage of care of the children;
- Working out each parent’s cost percentage;
- Working out each parent’s child support percentage;
- Working out the cost of the children based on the parents combined child support income, the number of children and the ages of the children;
- Working out the child support amount.
There is little opportunity for Court intervention in making determinations about the amount of child support payable by one parent to the other. Most Child Support decisions are managed administratively by the Child Support Agency. The CSA Act provides a regime whereby a parent may bring an application to the Child Support Agency to change their Child Support Assessment in special circumstances. The factors provide for ten (10) reasons by which a Child Support Assessment may be changed: –
- The cost of raising the child are significantly affected by the high costs of spending time or communicating with the child;
- The costs of raising the child are significantly affected because of their special needs;
- The costs of raising the child are significantly affected because the child is being cared for, educated or trained in the way both parents intended;
- The Child Support Assessment is unfair because of the child’s income earning capacity, property or financial resources;
- The Child Support Assessment is unfair because a parent has transferred money, goods or property to the child, the receiving parent or a third party, for the child’s benefit;
- The costs of raising the child is significantly affected by the parent’s or non-parent carer’s childcare costs, and the child is under 12 years of age;
- The Applicant’s necessary expenses significantly reduce their capacity to support the child;
- The Child Support Assessment is unfair because of the income, earning capacity, property or financial resources of one or both parents.
- The Applicant’s parent’s capacity to support the child is significantly reduced because of their duty to maintain another person or child, the special needs of that person or child, or the costs of spending time or communicating with that person or child.
- The Applicant parent’s responsibility to support a resident child significantly reduces their capacity to support another child.
The process by which to bring a change of assessment application is administratively determined and does not require any formal process of evidence. The Child Support Agency considers the application and the other parent’s response, usually conducted by way of a telephone interview, and then sends a formal written determination.
E. Division of Matrimonial Assets in NWS Australia
- Any asset including property, investments, superannuation and chattels, in the name of either party or jointly;
- Any liabilities including mortgages, personal loans, credit card liabilities of either party or jointly; and
- Any financial resources including interests in any trust of either party or jointly.
The Court will only make an Order adjusting property rights between a couple (noting that the Court have the ability to make property division in relation to married couples and de-facto couples, much in the same way) if it is just and equitable to do so.
The Court takes a four-step process as follows: –
- The Court will consider what are the assets, liabilities, superannuation and financial resources available between the parties for distribution;
- The Court will consider the financial, non-financial and homemaker contributions that each of the parties have made from the date of cohabitation up until the date the matter comes before the Court for consideration.
- The Court will consider the future requirements for each party, taking into account factors like age, health, care of children and capacity to earn income;
- The Court will consider whether the proposed Order for adjustment is a just and equitable result between the parties.
F. Spousal Maintenance in NWS Australia
The FLA does not distinguish between applications brought by a Husband or a Wife. The FLA provides that a person has the responsibility to financially assist their spouse if their spouse cannot meet their own reasonable expenses from their personal income or assets. Note there are also provisions for de-facto partner maintenance which are very similar. Accordingly, Husbands and Wives both rely on the same provisions and there is no differentiation in the result based on gender.
In the event a spouse can demonstrate a need for financial support, then the other spouse has a duty to support and maintain their spouse if he/she has the capacity to do so. This obligation continues even after separation and divorce.
- The age and stage of health of each party;
- The income, property and financial resources of each party;
- Each parties’ capacity to earn an income;
- The reasonable standard of living in the circumstances;
- Who has the care and control of a child under the age of 18 years old; and
- Whether the relationship has had an effect on the ability of each party to earn an income.
In cases where there is a Court Order for payment of spousal maintenance, the person who is entitled to receive the financial support may request the Child Support Agency to collect the maintenance from the payer. This is a service provided by the Child Support Agency at no cost to the person entitled to receive maintenance payments. This is often a very helpful tool for the person who is supposed to receive financial support to ensure payments will be received as the Child Support Agency has broad enforcement powers.