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Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:


CALL: (03) 8561 3318

What is (and is not) a divorce?

The word “divorce” is often used interchangeably with “separation”. This is somewhat a misnomer as the words are not synonymous with one another. While the process of separation involves a wide range of both emotional and legal issues, the least of which will include making parenting arrangements for children and dividing your assets, divorce is its own separate and discrete process for ending the legal marriage.

As such, a good starting point is to clarify some of the common misconceptions about divorce:

1. “We can’t divide our property until we are divorced”

You do not need to be divorced to formalise an agreement as to the division of your property. Similarly, you do not need to wait until you are divorced to formalise any parenting arrangements.

2. “Divorce is the first step of the process”

Given that you need to be separated for a period of 12 months before you are eligible to apply for a divorce, often divorce is practically one of the later steps in the separation process. The only thing you are unable to do without a divorce is re-marry, so usually there are more urgent matters to attend to such as parenting and property matters.

While negotiating parenting and property matters can become quite an involved process, the process for divorce in itself is mainly administrative and relatively straight forward.

3. “I need my partner’s consent to divorce him/her/them”

In Australia, we have what is known as “no-fault divorce”. This means the Court does not consider the reason for separation, and it forms no part of a divorce application. There is only one ground you need to prove for divorce: that your relationship has irretrievably broken down and there is no prospect of reconciliation.

Eligibility for divorce

Now that you know what divorce is, you need to consider whether you are eligible to make an application.

The eligibility criteria for divorce are as follows:

  1. At least one of the parties to the marriage is an Australian citizen (by birth or decent) or is ordinarily in Australia and has been so resident for at least 1 year;
  2. The marriage has broken down irretrievably and there is no chance of reconciliation; and
  3. The parties have been separated for a continuous period of at least 12 months (with no more than a three month period of reconciliation).

If you have been married for less than 2 years, there is an additional requirement that you and your spouse attend counselling and obtain a counselling certificate before making an application for divorce.

What constitutes ‘separation’?

Separation occurs when at least one party communicates their intention to separate, and they act upon that intention. It will usually be obvious to both parties when separation has taken place, in some cases one party will make it clear to the other by words or actions that he, she or they is intending to bring about the termination of the marriage.

Separation does not necessarily mean physical separation: it means simply the effect of breakdown of the relationship. As such, it is possible for you and your spouse to be separated but to continue living in the same home. This is known as “separation under one roof”. If you have been living separately under one roof for any portion of the 12 month separation period you will need to provide additional evidence with your divorce application to prove to the Court that you were separated during this time. You can contact a Family Lawyer to assist you with this.

Types of divorce

There is more than one type of divorce? Who knew?

There are actually two different types of divorce applications: a sole application, and a joint application. Which type is best suited to you will depend on your individual circumstances.

1. Sole Application

When you make a sole application, only one party to the marriage needs to sign the application (known as the Applicant). The other party (the Respondent) does not need to sign the application. Once a sole application has been filed with the Court, it will need to be served on the Respondent.

The Respondent will then have an opportunity to file a response to oppose the application if they believe:

  • The parties have not been separated for a period of 12 months; or
  • The Court does not have jurisdiction.

If you have made a sole application, whether you need to attend a court hearing will depend on whether there are children of the marriage under the age of 18 years. Court attendance is required if there are children, however Court attendance is not required if there are no children.

2. Joint Application

When you make a joint application, both parties to the marriage need to sign the application (known as joint Applicants).

There is no requirement for service for a joint application and there is no requirement to attend a Court hearing, regardless of whether or not there are children of the marriage.

What you need for your divorce application

Thankfully, there isn’t a long checklist of documents you will need for your divorce application – just a few things:

  1. A copy of your marriage certificate (and if the marriage occurred overseas in a non-English speaking country, a translated copy of the marriage certificate into English)
  2. A copy of your citizenship certificate (if you are not an Australian citizen by birth)
  3. A certificate of counselling (if you were married for less than 2 years).

But what do I do if…?

The divorce application process is relatively simple in theory (particularly in comparison to the process of dividing assets or negotiating parenting arrangements) but this does not prevent novel issues arising such as, what if you can’t locate your spouse? For any of these novel issues, it is recommended that you seek the advice of a family lawyer, who can also assist you through the process.

It is also important to consider that while a divorce application is a separate process to the division of property, it does have an impact on the time limitations for this process and so it is most advisable to speak to a family lawyer before making an application. This is the true first (legal) step in the separation process and is often the best way for you to get your bearings on the process, and understand your rights and options in the event of separation.

How can Sharrock Pitman Legal assist?

Our Specialist Family Law Team at Sharrock Pitman Legal are here to support you through this process with the care you deserve, to help on your journey to a better and brighter future. To book a consultation with one of our family lawyers, please contact us on 1300 205 506 or via email at family@sharrockpitman.com.au.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by one of our lawyers

,

.

Alana Di Paola

For further information contact

More on

Family Law

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be placed on the Supreme Court website for at least 14 days prior to any application.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself does not take long to process the application (maybe another 1 to 2 weeks) and this is done 'on the papers' using the electronic Court filing system. This means you do not have to go to a court hearing. There is also a general discretion for the Court to issue a 'Requisition' asking that you provide more information before they process the application and this can delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

  • Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
  • There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
  • There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.
  • You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
  • It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE: 
(03) 8561 3318

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About Sharrock Pitman Legal

For fifty years Sharrock Pitman Legal has made a significant and long term contribution to meeting the legal needs of business owners and residents in the City of Monash and greater Melbourne area.