In Australia you can obtain a divorce if you have been separated for 12 months. Many of my clients ask me if they need to get divorced.
Getting divorced is a relatively simple process particularly as last year the Family Court introduced it as an online service.
On the other hand, the government’s increasing fees for the application for divorce does act as a deterrent for some people to obtain a divorce although there are exemptions or reduced fees for people with financial difficulties.
It is essential to have a divorce if you wish to remarry. Apart from that, there is no legal requirement for separated spouses to divorce.
You can make arrangements for your children and sort out your property settlement all without any linkage to being divorced. Some people have reservations from a religious perspective about getting divorced.
Leaving those aside, I recommend to my clients that they should get divorced. It is cutting the last legal tie between you. Having a legal spouse when you are no longer together can sometimes lead to confusion.
There can be next of kin issues, and in the absence of an appropriate estate plan, significant estate problems if you die whilst having a legal spouse, particularly in relation to superannuation.
Most people would not like their de-facto spouse at the time of their death to have to deal with an ex-spouse from years ago. Divorce impacts your Will but the effect varies according to different states and territories.
Significantly, if you never get divorced your time to make an application for a property settlement never runs out. Even if you have no plans to ever re-partner, legally finalising the end of your relationship by getting a divorce is preferable.
Some people don’t get divorced because they have lost contact with their ex-spouse and think it will be too difficult to obtain a divorce as the ex needs to be notified (particularly if your ex has gone overseas). Don’t let that deter you. We can help you in this regard.
Ann Northcote is Family Lawyer at Farrar Gesini Dunn, Canberra Office.