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The First Timer’s Guide to Separation and Divorce

Lawyers, emotions, finances, family… It can be hard to figure out your first steps to divorce. Ending a marriage is one of the most challenging experiences a person can live through, and so feeling overwhelmed about where to begin is only natural.

Let’s explore some common questions that people have when deciding to separate and divorce. Armed with the right information, the path forward can feel less daunting.

General Questions About Divorce

How many marriages end in divorce?

According to the Australian Bureau of Statistics, in 2021 there were 2.2 divorces per 1000 people living in Australia. Unfortunately, this is the highest it has been since 2012. The average marriage lasts around 12 years until divorce.

Are divorced couples happier?

Ending an unhappy marriage is not easy, but it’s important to know that a happier future is possible. It gets better. We offer divorce coach services to help you thrive after divorce.

First Steps Towards Divorce

Should I get a divorce?

The decision to divorce is an intensely personal one – and only you can make it. However, it can be helpful to talk to a professional who understands the process and can assist in clarifying your situation. Pre-divorce Coaching will give you the practical advice and support you need to make the best decision for your future.

I want to separate but can we afford it?

The first step towards divorce is generally separation. Separation is more than moving out. It requires you to plan your finances first. Organise your bank accounts and financial documents. Engaging with a lawyer can help you save a lot more money in the long run. You may also be eligible for spousal maintenance or child support.

How do I tell my spouse that I want to separate?

There is no “good” way to deliver bad news, but there are things to avoid like ‘surprising’ your spouse during an argument or bringing the conversation up without having a clear idea of what you want to say. If it is safe for you to do so, sit your partner down in a private space. Be empathetic but direct.

If it is not safe for you to be alone with your partner to deliver this news, have another person with you, or have the conversation over the phone or in a public place.

How do I tell my children about separation?

Keep it simple, straightforward, and with lots of reassurance that they are loved by both parents. Ensure they understand the separation has nothing to do with them. It can be a challenge to stay neutral if the separation is bringing up strong emotions for you, but don’t play the blame game or insult your ex – this puts extraordinary pressure on your children to choose sides. Our expert Family and Child Consultant expert can help you plan how to tell your children.

How can a divorce affect a teenager or child?

Children can feel blindsided by divorce. Allow them the time and space to process their feelings, whether that be confusion, anger, worry, sadness, or guilt.

Conflict in divorce can cause your children harm. It is best to keep a routine, maintain open communication with your children and reassure them

Can my spouse take the kids away if I leave them?

Legally, your spouse cannot take the kids away if you still share custody. If your spouse takes the kids away without permission and denies you access to them, seek legal advice.

It is best to put a legally binding agreement in place for the future, such as a Consent Order. Any decisions concerning custody must be made in the best interests of the children.

Separation

How do I separate in Queensland?

You must separate and live apart for at least a year in order to file for divorce. It is best to agree on a date of separation for the purposes of your divorce. There are no other legal requirements unless you are “separated under one roof.” In that case, the Court will weigh a variety of factors to define your separation.

How do I prepare for separation from my spouse?

You will need to agree on custody arrangements for children and where you will live. End any joint accounts and tenancy and make sure you notify government organisations like Centrelink, banks, and insurance. Talk to your divorce coach to prepare for separation.

Who gets to stay in the house during separation?

Both partners have a right to live in the marital home during separation, even if only one of you owns the home. You will have to agree on who will stay, or separate under one roof.

Can I force my spouse to leave our home?

Neither of you can force the other to leave the home. You may apply for an Exclusive Occupancy Order. This is where the Court will consider factors to decide if it is best for one spouse to be forced out of the home. However, this is mostly granted in cases of abuse.

The Divorce Process

How do I file for divorce?

You can apply individually or together for a divorce. You can apply online. For sole applications and marriages involving children under 18 years, you must attend a divorce hearing with the Court. The first step towards legal divorce is this step.

How long does divorce take?

After at least a year of separation, you can file for divorce. It may take a couple of months to reach your hearing. Your divorce is finalised one month and one day after divorce is granted. Sometimes divorce can be delayed by

problems contacting or locating your spouse
issues with paperwork or legal requirements
inadequate child custody arrangements
Court backlog

How much does a divorce cost?

There are multiple factors that can influence how much a divorce will cost. These include

the value of the property you individually own and share
Court fees for applications to the Court and litigation
how much you use legal advice and representation
where more complex property like a shared business is involved

What if my spouse won’t sign the divorce papers?

As long as you serve your spouse with your divorce application and prove it with an Affidavit, the Court can still grant a divorce. The Court will just need to decide whether “marriage has irretrievably broken down” indicated by 12 months of separation.

Property Settlements

What is my spouse entitled to in a divorce?

How much you are entitled to in divorce depends on both financial and non-financial contributions to your property. When going through the Court, any shared or individual property will be part of the asset pool. This property will be valued and divided, including

Real property
Mortgage
Bank accounts
Vehicles
Debts
Businesses
Superannuation

See where you stand with your finances with Divorce Hub.

Do I have to do a formal property settlement?

You have other options besides going to Court for your property settlement. You can negotiate a Binding Financial Agreement or Consent Order and utilise mediation or collaborative divorce. You can also make an informal agreement that isn’t legally binding, but we advise against that as it does not protect you legally and financially and you can end up paying stamp duty or capital gains tax.

What now?

Divorce Hub has offices in Brisbane, Sunshine Coast and Gold Coast as well as online. We offer unique legal services and divorce coaching to help people thrive after divorce.

Disclaimer: This is general information. It does not constitute legal or financial advice. For specific legal advice, please get in touch.