How important is it to get divorced properly

How important is it to get divorced properly?

Some marriages are just not meant to be, and couples often separate in order to move on with their lives as an individual or even with new partners. With the rise in de facto relationships and people not wanting to get re-married, I am finding that many individuals seem to think that there is no reason to get divorced – it’s just more paperwork and costs too much are the most common excuses. What some people don’t seem to understand is that without a formal dissolution by the court, from a legal perspective, you are still married.

In Australia we have had “no fault” divorce for quite some time. In order to apply for a divorce all you need to be able to confirm is that you live in Australia, that the relationship has irretrievably broken down and that you have been separated for more than 12 months. The application for divorce can be initiated by one person alone, or jointly, and is now just a matter of filling in an online form and paying the court fee which is currently $1060 (but can be reduced for financial hardship). Court attendance may not even be required if it’s a joint application and parenting or property orders have already been made.  Once a divorce is granted by the court, it is finalised one month and one day later.

There are many ramifications of remaining legally married once separated. The obvious ones are the impact on potential taxation and Centrelink benefits. You could also be considered to be jointly responsible for your spouses’ debts, including debts incurred after the separation. You could be lumped with your spouse’s bad credit rating that will affect you well into the future. Any property or other asset of value you acquire after the separation, including for example a family inheritance, could be subject to a claim by your spouse. They could also be your next of kin for any emergency medical decision making on your behalf.  The major impact that people don’t consider however, is the impact on their estate. If you pass away while still legally married, your spouse could apply to receive the proceeds of your superannuation including any death benefits or other insurance entitlements. Any jointly owned assets will pass to the surviving owner. Your spouse is also first in line for any distribution of your estate under the intestacy provisions if you pass away without a current will. Even if you do update your will following separation, your spouse is an eligible person to make a family provision claim in NSW.

I am not a family lawyer, there are many great family lawyers in our region who would be better equipped to assist with advice relevant to obtaining a divorce. The point of this article is to make everyone aware that a divorce is not just paperwork, there are legal ramifications of remaining married to a person and in particular, in relation to estate planning.

KC Hilton, WNB Legal