Do I Have to Divorce?
In some situations where a married couple has separated, a divorce is necessary. For example, if you would like to remarry, you will have to obtain a divorce from your current spouse. It is important to note that if you have obtained a religious divorce such as a talaq, or an annulment, you will still be required to obtain a divorce from Division 2 of the Federal Circuit and Family Court of Australia (FCFCA) before you remarry.
Divorce is also important in relation to the division of your matrimonial property. If you think your spouse may bring a claim for property settlement against you, and you do not want that to happen, then you should obtain a divorce as soon as you meet the requirements. Once your divorce is granted, it will trigger a time limit for you or your spouse to initiate property proceedings. The time limit is 12 months from the date of the divorce.
On the other hand, if you are thinking about bringing a property claim against your spouse then you should not apply for a divorce until your property matter is resolved. Note that to bring a property claim within the 12-month limitation period, you must initiate proceedings in court within that time. It is not enough just to start negotiations.
Once the time limit of 12 months has passed, the court may still allow you to bring property proceedings but you will have to show reasons for not bringing a claim within 12 months.
If you would like advice about divorce or its effects on your matrimonial property claim, you should consult one of our experienced family law solicitors.
Obtaining a property settlement from the FCFCA is a long process, especially if you are applying as a single applicant and not a joint applicant with your spouse. The time frames in this article for starting property proceedings only apply to those separating following a marriage. Different time frames apply to those separating from a de facto relationship. In that instance, the time period is two years from separation.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.
This article was written by Michelle Makela
Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...