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Patrick H.
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 5421
Experience:  Dip Law LPAB - Sydney based lawyer
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Hi ~ my husband and I separated amicably just over 3 months

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Hi ~ my husband and I separated amicably just over 3 months ago and he is moving back overseas in a month or so ... I know that we have to wait twelve months before we can divorce but is there any way we can get things signed and organised now, so there are no documents to be sent back and forth overseas and can just be submitted on the date? We have no children and no assets together. Trying to find an easy and convenient way to do it all before he leaves. If we can, what and how do we go about it?

Cheers,
KD
Hello and thank you for your question.

you can use the divorce kit published by the Family Court to file for your divorce without the need of involving lawyers and it is a fairly straight forward process if the parties are willing to cooperate:

http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Forms/Divorce+forms+and+kits/

However, because the forms require the parties to affirm that that they have been separated for 12 months you won't be able to do this prior to the 12 month separation period expiring.

Nevertheless, provided you both parties cooperate, the process will likely require nothing more than that the party in Australia prepares the divorce application, then sends a copy to the overseas party by post and then the overseas party can simply acknowledge the service of the application if he does not wish to object (using the forms in the kit), whereupon the application can be processed and the divorce will be granted.

Of course you can involve a solicitor in obtaining the divorce order if you like, but they will still require your assistance and instructions to prepare the application as only you will know most of the information required to be included, and the kit is designed to be used by parties without the need to involve a lawyer.

I trust that answers your question regarding the process you need to follow for the divorce.

In relation to your statement that you have "no assets together" this implies you believe no property settlement is required because you have no joint assets. This is not necessarily the case. Under the Family Law Act, the parties to a disolving marriage are entitled to a share of the combined asset pool (that is all assets in either party's name and including both parties superannuation) which is fair having regard to their respective contributions (financial and non-financial), both initially and throughout the relationship, and then adjusting for any special circumstances.

In a short marriage the courts will usually simply try to put the parties roughly back in the position they were in, and if that is your situation, if there has been no mingling of your assets or finances, then likely you don't need to consider a property settlement, however, if the relationship has been a long one, very often the some adjustment may be warranted. So if your relationship has been a long one, and particularly if there are substantial assets involved, it may well be worthwhile for you to brief a lawyer to examine your circumstances in detail to assess whether a claim for property orders ought to be considered.

I trust the above assists.

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Thank you and good luck.

Patrick


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