Over the coming weeks, CMC is very happy to be publishing a number of helpful articles in The District Reporter. Titled Law Matters, we will be covering a range of topics in various areas of law. For a copy of the full version of the District Reporter, go to www.tdr.com.au.
Divorce is an order from the court declaring that you are no longer married. Once divorced you are free to re-marry. If you never apply for a divorce, you remain married until the death of either spouse and are treated like a spouse for the legal purpose of wills, estate issues and property settlement processes regarding that marriage.
Divorce is a separate legal process, although throughout Australia and in many other countries, a court is not able to grant a divorce unless it is satisfied that the parties have lived separately and apart for at least 12 months. You should note that it is possible to be ‘separated under one roof’ if such circumstances can be proved and the required evidence can be filed in court. However, if you were married for less than two years (including the time you were separated), then you must attend counselling with a court approved counsellor before the court will grant a divorce unless there are special circumstances.
Make a Estate planning part of this process – make sure your will is up to date. Further, be aware that a divorce revokes parts of your will such as appointing your ex-spouse as your executor and giving them a gift. This means it is important to update your will when you separate.
Many people are not aware that you do not need to wait until divorce before starting court proceedings for parenting and property settlement matters.
Parenting arrangements and the division of property are normally commenced first. Indeed, if you wait too long and apply for property orders more than 12 months after your divorce is granted, the court’s permission is needed to file the application and there must be a very good reason for the delay.
Many people also do not realise that separation does not stop either party from making a new will, updating beneficiaries on superannuation funds or cancelling enduring powers of attorney. These types of documents need to be reviewed immediately after separation as they are only revoked by divorce. If you die whilst still married, then your ex-spouse may still be entitled to some or all of your estate even if you were separated for 25 years. Don’t assume your separation changes that.
If you are unsure, speak to one of our Family Law matters to find out where you stand. Knowledge is power.
