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The Divorce Dilemma

When people think about separation, they often say “I want a divorce”. Your property settlement and parenting arrangements are a separate process to divorce.

A divorce is simply a process that dissolves the marriage – and is therefore only available once you have been separated for a period of 12 months.

Some people feel reluctant to divorce their former spouse – for religious reasons, family reasons or simply because it was not their decision to separate in the first place. It is very important to consider the implications of applying for a divorce, or remaining married long-term after the separation.

Here are two examples of what can go wrong.

1. Andrew and Anita have been separated for over three months when they reached a final agreement about their property settlement. Once they had been separated over 12 months, Anita wished to make an Application for a Divorce, and invited Andrew to participate in a Joint Application. Andrew was still feeling bitter after the separation, and he wanted to be difficult, “If Anita wants a divorce, she can wait until I’m ready – I wasn’t the one who wanted the separation”. Andrew didn’t sign and return the divorce Application to Anita right away, he left it on his desk to think about it later.

Sadly, Andrew died suddenly. He had no Will in place, and since Anita was still technically his Wife, that meant the law gave Anita the automatic entitlement to Andrew’s entire estate – property, bank accounts, everything in Andrew’s name. Andrew’s new girlfriend and his parents were shocked, “How can Anita be entitled to all Andrew’s assets? She already had property settlement and took her share, Andrew’s assets shouldn’t go to her now on his death – that’s double dipping!” To try to recover Andrew’s assets would require court proceedings and that meant costs, with no guarantee of success.

If Andrew had co-operated with Anita in a Joint Application for Divorce, or made his own separate Application for Divorce (without needing Anita to co-operate), the divorce would have been completed before his death. Anita would no longer be his legal spouse. Andrew’s assets would be distributed to his parents, or if he had a valid Will he could have left them to whomever he chose.

2. Betty and Barry were married for 15 years. At the time of their separation, Barry kept his family home, and Betty moved into the investment property. They transferred title deeds so that they each solely owned the property they lived in, however no final property settlement orders were ever made to confirm that arrangement. Barry’s view was “We reached an agreement, we don’t need lawyers.”

Barry’s business really improved over the next seven years, and he spent a great deal of money renovating and improving his family home. He made extra superannuation contributions, and invested in a share portfolio. He was progressing very well financially.

Betty was not doing so well. She didn’t go back to work, and had little motivation to earn an income because she just kept drawing down on the mortgage of her property to fund her costs of living. Over a period of seven years Betty had eaten away almost the entire equity in her home.

When she could no longer meet the costs of her mortgage and her costs of living, Betty brought an Application against Barry for final property settlement and for spousal maintenance. Barry was shocked, “How can she do that, we have lived our own lives for the last seven years!” As no divorce had ever been granted, Betty was within her rights to bring an Application. A financial settlement had to be negotiated some seven years down the track and in very different financial circumstances.

If Barry had entered into final property settlement orders and obtained a divorce sooner, Betty would be unable to demand financial settlement some seven years down the track. The time limit would have expired 12 months after the divorce, and Betty would have required special permission from the Court to bring a claim outside of that time limit.

It is important to obtain legal advice to consider the advantages and disadvantages of obtaining a divorce. We always suggest that once you have been separated for a period of 12 months, you should contact us for some strategic consideration of whether you should divorce. Call us on (02) 9523 3007 or use the contact form to book in your appointment, and let us navigate you through the options to protect your future.

This article is designed to provide information, not legal advice. Please note the people and examples used in this article are fictional characters.

You should ensure you obtain legal advice as the law applies to individual situations in different ways. Liability limited by a scheme approved under
Professional Standards Legislation.