Marriage, Separation and Divorce
MarriageImportant Paperwork – Notice of Intended Marriage Finding a Celebrant After you are married Making a complaint about a Commonwealth registered Celebrant Same Sex Relationships What is a De-Facto Relationship
SeparationJointly Held Property Binding Nominations in Superannuation and Insurance Your Will Enduring Power of attorney and Advance Health Directives Your former partner has real estate in his or her name only Who has the legal right to stay in a home? Can I lock my ex partner out of the home Can my partner lock me out if I am not on the title? What if my partner stops paying the mortgatge Documents to take
DivorceChild Support Divorce or Separation – MoneySmart Family separation – a guide for teens Kids world – a kid’s guide to changing families Online Application for Divorce Separated families support materials Separation and divorce
To be legally married in Australia, a man and woman must:
- not be married to someone else
- not be marrying a parent, grandparent, child, grandchild, brother or sister
- be at least eighteen years old, unless a court has approved a marriage where one party is aged between sixteen and eighteen years old
- understand what marriage means and freely consent to becoming husband and wife
- use specific words during the ceremony
- give written notice of their intention to marry to their authorised celebrant.
The celebrant you choose will help you understand these requirements.
You don’t have to be an Australian citizen or a permanent resident of Australia to legally marry here. You can find marriage visa information on the Department of Immigration and Citizenship website, if you hope to live in Australia after your marriage.
NOTE: The above are the essential requirements for marriage in Australia. The law however, may still recognise that a marriage has taken place in a variety of circumstances where one or more of the requirements may not have been met as long as the couple genuinely believed that they had complied or in circumstances of a traditional ceremony of a different culture. If you are concerned that your marriage will not be recognised in Australia please discuss your concerns with your lawyer.
Important paperwork – Notice of Intended Marriage
A completed Notice of Intended Marriage form must be given to your celebrant at least one month before the wedding. You can give it to your celebrant up to eighteen months beforehand.
Your celebrant can help you complete the form. The notice may be completed and witnessed outside Australia if required.
Talk to your celebrant if there is less than one month before your wedding. A prescribed authority may approve a shorter notice time in some limited circumstances.
You will need to give your celebrant evidence of date and place of birth, identity and the end of any previous marriages for each party. Your celebrant may also ask you to complete a statutory declaration to support your evidence.
Finding a celebrant
Only an authorised celebrant can legally perform your marriage.
Authorised celebrants perform civil and religious ceremonies. There are three kinds of authorised celebrants:
- Commonwealth-registered marriage celebrants who perform civil and religious ceremonies (for independent religious organisations). The fees charged by these celebrants are not fixed. Prices may vary between celebrants. They are also required to follow the Code of practice for marriage celebrants.
- Code of practice for marriage celebrants [DOC 123KB]
- Code of practice for marriage celebrants [PDF 106KB]
- Ministers of religion of a recognised denomination who perform religious ceremonies. These celebrants are regulated by state and territory registries of births, deaths and marriages and their respective religious organisation.
- State officials who perform civil ceremonies.
This includes some staff of state and territory registries of births, deaths and marriages and some local courts.
The Coalition of Celebrant Associations offers some tips on choosing your celebrant.
For more information, visit the Find a marriage celebrant page.
After you are married
On the day of your wedding, you will sign three marriage certificates. Each certificate should be signed by you, your celebrant and two witnesses. Your celebrant will give you one of the certificates as a record of your marriage.
Your celebrant must register your marriage with the registry of births, deaths and marriages in the state or territory it took place within fourteen days.
The certificate issued by the registry of births, deaths and marriages is required for many official purposes. You should apply for a copy of this certificate from the registry after your wedding.
Making a complaint about a Commonwealth-registered marriage celebrant
Speak to your celebrant early if you have concerns. If you can’t resolve the issue you can find more information on the complaint about a marriage celebrant page.
Australian law defines marriage as a union between a man and a woman. Same-sex marriages entered into in other countries are not recognised as legal marriages in Australia.
Some state and territory governments allow people to register their same-sex relationship. You can find out more information from state and territory registries of births, deaths and marriages.
What is a de facto relationship?
A de facto relationship is one between two adults not legally married to each other, not related to each other inside the prohibited degrees and living together on a genuine domestic basis.
All de facto couples, whether heterosexual or homosexual are covered by the Family Law Amendment (De Facto Financial Matters and Other Matters) Act 2008 introduced into South Australia 30 June 2010.
This means that property owned by a couple in a defacto relationship will be divided having regard to the future needs of the parties, not just their contributions. The provisions relating to the considerations applying to property orders and setting aside property orders are substantially the same as those applying to married couples.
The old laws will continue to apply to all relationships which ended prior to the new legislation coming into force.
To qualify for property distribution relief, the couple must have separated on a final basis after the date of commencement of the legislation ie 30 June 2010, or the couple must agree to having their matters determined under the new legislation.
One or both of the couples must be ordinarily resident in South Australia at the time the application is begun and either the relationship must have lasted for at least two years or there is a child of the relationship or the applicant has made substantial contributions to property to an extent sufficient to cause a serious injustice if the case were not permitted to proceed.
Jointly Held Property
The effect of property being held in the form of joint tenants is that if one paerson dies, their interest or share in the property automatically transfers to the other person. The deceased person’s share in the property does not get transferred in accordance with their will. Therefore, if you were to die you share in the property would automatically be transferred to the other joint tenant, your former partner.
As separation and divorce have no effect on the title of your house or other real property, if it is in joint names it is recommended that you instruct a solicitor to sever the joint tenancy as soon as possible. When this is done you are able to sell, or in the event of your death, to leave your share to someone else.
Binding Nominations in Superannuation and Insurance
It is extremely important that you arrange for any binding or non binding nominations in relation to your superannuation and insurance interests to be changed.
It is usual to have a partner as the beneficiary of any insurance policy or superannuation benefit.
As separation and divorce have no effect on your superannuation or insurance nominations, it is vital that you change your nominations to ensure that your superannuation does not get paid to your former partner in the event of your death.
It is extremely important for you to arrange for a new will to be drafted to take into account that you have now separated.
Separation does not revoke your current will so any clause in you will naming your former partner as a beneficiary or executor will remain in force until a new will is made.
Divorce does not revoke a will but it cancels any provision in favour of the former spouse. If you divorce after you make your will, it only revokes or cancels any gift to a former spouse. It also cancels your spouse’s appointment as executor, trustee or guardian in the will, but it will not cancel a appointment of a former spouse as trustee of property left on trust for beneficiaries that include children of both you and the former spouse. However, this won’t apply if the Court is satisfied that the will-maker did not intend by divorce to revoke the gift or appointment.
Enduring Power of Attorney and Advance Health Directive
It is usual for parties to appoint their partner as an Attorney under an Enduring Power of Attorney and Advance Health Directive. Separation does not revoke your current Power of Attorney or Advance Health Directive. It is therefore vital that you also consider updating these documents to ensure that your financial and personal health matters are managed by the person of your choice should you lose capacity to manage these yourself.
Your former partner has real estate in her or his name only
It is important to speak to a solicitor at the earliest possible time to discuss whether it is appropriate to place a caveat with Land Titles Office on any real property held in your former partner’s name only. This will preserve the property from any kind of dealings eg sale, alterations, further mortgage, etc without your knowledge. You will be advised of any intentions by your former partner to deal with the property and therefore have the opportunity to protect your entitlements.
Who has a legal right to stay in a home?
This area of law is know as Right of Occupancy. Before you go and change the locks take care.
Can I lock my ex-partner out of the home?
Properties are often owned “jointly” by parties married or de facto partners subject to any express written agreement both parties have a concurrent legal right to occupy the premises.
So can I lock my ex-partner out? The answer is maybe. You can change the locks but the other person has an equal right to obtain a locksmith and obtain entry to the premises.
Accordingly you should seek the assistance of either their expressed consent (not to re-enter) the property or alternatively seek the assistance of a Court. The Family Courts will entertain applications by parties who seek the exclusive occupancy of the matrimonial home. The Courts will take the holistic approach that will examine the financial capacity of one party (or the other) to rent a property elsewhere, the arrangements for the care of the children (i.e. who is the primary caregiver) and how a “moving out” would affect the ability of this primary caregiver to continue in this role.
The Court will also consider violence or other conduct between the parties and their ability to self-regulate their behaviour. The Court will not consider it to be in the best interests that children be constantly exposed to loud, verbal altercations or arguments even in the absence of physical violence.
The Court may consider the physical layout of the premises to see whether or not it is possible to physically isolate a part of the house to continue occupancy but through a separate entrance with little or no common use areas.
Can my partner lock me out if I am not on title?
In this case the husband or the wife has the house in their name and wish to exclude the other party from the house by changing the locks and seeking to exclude them. This situation is more difficult on the part of the person who is not on title (and is seeking to be excluded). The person on title has the “legal” right to exclusively occupy as owner of that property.
It may be that the other person has a “equitable right” to that property as well but will require a Court declaration or Court order permitting either exclusive occupancy (to the exclusion of the other) or alternatively occupation or exclusive occupation of that site. The Family Courts do entertain urgent applications in circumstances of crisis and arbitrary and unilateral actions by spouses in these circumstances.
What if my partner stops paying the mortgage?
We are often asked whether or not this permits the innocent party to kick them out of the home or alternatively to get an order forcing them to pay. Again the Courts will consider a holistic approach to the evidence as to the ability of one party to contribute to the joint debts and liabilities of the marriage.
In any event the bank is an independent third party and, in the normal form of mortgage, both parties have a joint and several obligation to pay the mortgage payments. In the event that one party needs to assume all of the parties until a final determination by the Courts, these additional contributions should be “added back” in any final accounting of the matrimonial property and financial resources of the parties to the relationship.
Documents to take.
Any previous court orders or financial agreements regarding property
Copy of valuation or market appraisal for house and/or investment properties
A copy of yours and your spouses/partner’s
– Three most recent tax returns
– Most recent superannuation statement
– Policies or statements in relation to any life insurance
– Copy of the last twelve months bank statements noting current balance held and account
details of all accounts
– Copy of past twelve months credit card statements noting current amount owing and account
– Copy of most recent mortgage statement noting the amount still owing
– Three most recent pay slips
– List of creditors and amounts owing to each.
Registration details of any vehicles including estimated market value
Copies of share certificates or statement noting number and current value
If you own or are a director of, or your spouse/partner owns or is a director of a company or partnership:
– Annual return identifying the officeholders and shareholders
– Copy of financial statements for thelast three years (including balance sheet and profit and
loss statements and depreciation schedules
– Copy of the business tax returns and/or assessments for the last three years
– Copy of BAS statements for the last twelve months
– Copy of the partnership agreement if any
If you or your spouse/partner are part of a trust
– Copy of the trust deed
– Copy of the financial statements for the last three years )including balance sheets profit and
loss statements and depreciation schedules)
– Last three years tax returns
– Provide copy of court orders regarding children to children’s school
– Make application to Child Support Agency for Child Support
– Take Children’s toys and clothes
– Take Furniture you will need
– Copies of any medical reports and doctors contact details if relevant
– Copies of any school reports
– Copies of any previous Court Orders
– Copies of Intervention Orders if applicable
– Originals or certified copies of children’s birth certificates
Child Support, part of the Department of Human Services (DHS), is helping separated parents provide the necessary support for their children’s wellbeing.
The Family Law Court site contains Information about divorce in Australia, including laws, fees and answers to common questions.
The end of a relationship can be an emotional and traumatic time. You may feel anxious or overwhelmed about such a big change in your life.Be kind to yourself. Ask for support if you need it. There are lots of places you can go for help. Get started with these MoneySmart steps.
This guide aims to give teenagers some tips and help to understand and cope with family separation and change.
This computer game reassures older primary school aged children who are experiencing, or have gone through separation that it’s not their fault, they’re not alone and what they’re thinking or feeling is okay. The game helps children understand what is happening; helping them find ways to cope and letting them know where they can go for help.
Complete and submit your Online Application for Divorce. You can also pay the fee by credit card (or seek an exemption); and select your own hearing date. Information links on the page include Step by Step Divorce Guide and an Application for Divorce Kit.
Information and links to books, publications, websites, DVDs and other resources to support families going through separation.
Family Court page with information on how to apply for a divorce, costs, proof of a divorce, nullity, separation and serving papers on another party.