FAQ’s – Divorcing and Divorced

How long do we have to be separated before we can get a divorce?

You have to wait at least one (1) year after separation before you can file an application for divorce in the Family Court. However you can determine how you will manage the property settlement anytime after separation .

My wife and I are divorcing and we want to take care of the financial side of things. What are our options?

You can either make a Financial Agreement (90D or Divorce agreement) or apply to the Court for Consent Orders. If apply to the court it must be done within 12 months of the divorce.

How do we get a divorce?

In Australia it is quite simple to get a divorce – it can be done on-line here . This site has information and resources to help you learn about the divorce process and lodge your application for divorce whether it be on-line or offline.

How do I change my name after a divorce?

Go here for information on how to change your name.

When does a Financial Agreement come into effect?

Whilst you can stipulate how you want to divide property in the agreement theoretically, the practical division of assets and liabilities does not occur until either party has signed a separation declaration. Read more

What happens if all the assets aren’t disclosed?

The parties have a duty of disclosure to the court as well as each other. If one party tries to hide Assets or liabilities that effect the other party the party could go to court and argue to have the agreement set aside. Read more

Do you have to pay Capital Gains Tax on property transfers?

Capital gains tax, stamp duties and other charges may not apply to property that is transferred following breakdown of a relationship. In order to secure this exemption, there must be formal documentation, such as a Binding Financial Agreement or Consent Orders. Read more about CGT and Property Settlement.

Is property settlement taxable in divorce?

No.  Property transferred to or from spouses in a property settlement will not be liable for stamp duty if the correct procedures are followed. CGT may or may not apply depending upon the circumstances- learn more at Stamp Duty/CGT and Property Settlement.

Superannuation transferred from the account of one partner to the other is not subject to tax.  Neither is spousal maintenance taxable.

In order for the transaction to apply for an exemption, the transfer of assets must be specifically dealt with in a Financial Agreement or other acceptable agreement, such as Court Orders or Consent Orders