Marriage separation Australia – What your divorce really means.

By 22 October, 2018Divorce
legal separation queensland, victoria, western australia, south australia

What does your divorce really mean

Some people might ask a starting question as to what getting divorced really means. The simple answer would be that you are no longer married or equally obviously, that you are then entitled to re-marry (most people wish to avoid the stigma of being called a bigamist).

However, getting divorced does have an impact in a number of other areas and we will discuss each of these in turn.

Your Estate planning/Will

Just as getting married revokes your then Will (unless it is made in contemplation of marriage) getting divorced has a similar effect. Upon a final Decree of Divorce being made your previous Will in so far as applies to your former spouse receiving specific gifts or acting as your general executor are revoked. Your former spouse can still be a Trustee for property where the ultimate beneficiary includes the children of your spouse.

It is therefore important as part of the divorce process to ensure that your wishes are protected and you should prepare a new Will ensuring that the beneficiaries you wish to now receive your Estate following your divorce can lawfully do so and appropriate executor/s are appointed.

Enduring Power of Attorney

It is quite commonly forgotten that your former spouse may be your Attorney and that your Enduring Power of Attorney has been sitting in your cupboard or in a solicitor’s office for years. In a similar vane to your Will when your divorce is finalised it will invalidate your Enduring Power of Attorney to the extent any power is given to your former spouse. This means you should again review this document immediately and ensure that you have valid Attorneys who can act on your behalf to resolve financial and health matters should the need arise in the future. The consequences of not updating your Enduring Power of Attorney may mean that your family may need to make a lengthy and time consuming application to the Guardianship Tribunal for someone to be appointed to look after you in the event of your incapacity in the future.

Ability to re-marry

As noted above under Australian law you are not able to re-marry until your prior marriage has been finalised by either a final Decree or the death of your spouse. It is not uncommon to have that ‘oh no’ moment when you realise that you have fallen in love and just booked in your wedding only to realise that either you or your former spouse have not taken the necessary steps to finalise a previous marriage and seek a divorce. Commonly people confuse having property settlement orders made with the legal ending of the marriage in this regard.

Change of Name

A significant number of Australian women who marry adopt the name of their husband upon marriage. When separation occurs it is not uncommon that the wife will wish to revert back to her maiden name. Whilst this can be done informally with some documentation unless you are formally divorced you will not be able to update important documents such as driver’s licence or passports without a Decree of Divorce. It is therefore better to finalise your divorce if you have a view of returning to your maiden name going forward.

Property Settlement

Your property settlement and your divorce are not exclusive of one another. Whilst most people commonly resolve their property before they get divorced, in some cases perhaps due to lack of funds to pay out existing mortgages, property continues to be held jointly for several years after separation. This is also the case with jointly run business ventures. Accordingly you may be wishing to contemplate getting divorced before you finalise your property settlement matters. There is one downside of this in that there is a 12 month rule which simply stated, means that after your Decree of Divorce is made you have 12 months to have finalised your property settlement affairs or formally commenced, in a Court, an application for property settlement within this 12 month period. Otherwise you will need “Leave” (or permission) of the Court to have a property settlement at all. Leave is not always granted depending on the circumstances. Accordingly it is important to watch time limits which may apply.

Conclusion

The case of formally ending your marriage or getting divorced means a fresh start and the ability to plan your life in relation to your Will, Power of Attorney and what name you go by. Addressing these things promptly can avoid future problems developing and satisfaction in taking control of your life.