Clients often come to see their lawyer and say ‘I need a divorce.’ After some questioning it emerge a divorce is not what the client wants or is able to apply for. Instead the client is really after a property settlement.
So you know lets look at what a divorce is and then examine a property settlement.
A divorce is something you apply for after your marriage has broken down and there is no likelihood of the two of you getting back together.
The divorce has nothing to do with working out with whom the children will live or how property is to be divided between the two of you.
You can apply for a divorce if:
- You have been separated and living apart for more than 12 months; and
- There’s no likelihood of the two of you reconciling.
If you have separated under the one roof you can still apply for a divorce, but you will need to file additional material to convince the court the two of you have separated.
Instead of preparing the additional material some people wait until it is 12 months of living apart (for example for the first six months of your separation you lived under the one roof and then you lived separate you may wait 12 months before you apply for divorce from living apart, even though date of separation is still the date you actually separated). We will cover additional requirements for divorce if you have been living under the one roof in another post.
Once you file your application for divorce the court allocates a date. This date is the date when the court hears the application. If there are no children under the age of 18 you do not need to attend the hearing. Where there are children under the age of 18 the court likes to have at least one of the parents (the applicant) present to make sure proper arrangements for the children are in place. The divorce will still be granted, even if there are not proper arrangements in place for the children. It will however be noted on the court record that the arrangements for the children to see the other parent are not proper. (something like ‘and the court notes that the arrangements for the children are not proper but…).
The divorce will be effective 31 days after the hearing date for the application for divorce.
A property settlement is not a divorce. Property settlement is about dividing up the assets available for division.
You can negotiate and finalize a property settlement any time after separation. There is no minimum time before which you can sort out the financial matter between the two of you.
If you have filed for divorce, you need to remember that you only have 12 months from the date of divorce to finalize property matters between you. If you do not manage to sort out the property dispute between the two of you and you need to commence proceedings you can only do so with leave of the court.
Example: Maria and John separated 1.1.2015. John applied for divorce on 1.1.206 and the decree nisi became absolute on 1.4.2016. Maria decided on 30.6.2017 she wants to sort out the financial dispute between them. John does not want to give her anything. Maria wants to apply to the court. Its then that her lawyer discovers that it has been more than 12 months since she has been divorced Now an application has to be made to the court to give Maria leave (the court has to agree to hear the case), before she can actually apply for property orders.
Lesson – sort out your property settlement before the 12 months from the date of divorce is up.
Remember this advice is of a general nature and you should consult with your lawyer to obtain advice about your particular situation.
Don’t waste your money – get some sound legal advice.