How to file for a divorce in an abusive relationship

Divorce is a time of pain, stress, and great contemplation. Emotions are at a heightened state and respective spouses can feel at odds. When children are at the centre of a separation, divorce can become even more complicated. There are other matters regarding care of the children, matrimonial assets, and the division of property to contend with. In a whirlwind of events, the stress can sometimes be too much to handle. In family law, a vulnerable party can find him or herself victim to an abusive spouse. This article is intended to provide legal information on how to proceed with filing a divorce in an abusive relationship.

Divorce proceedings can create feelings of hopelessness and a sense of failure. A union that was intended to be a life time commitment has now developed into messy court proceedings that seem far from being over. Rest assured, however, that there is light at the end of the tunnel and you are not alone on this journey. An experienced family law solicitor can function assist you and alleviate much of the stress that you envisaged carrying on your journey.

In a study conducted by the Australian Divorce Transitions Project, in a national random survey of 650 divorced Australians, reports suggested that 12.1% of respondents had filed for divorce due to physical violence.[i]

In 2005, The Australian Bureau of Statistics reported that physical assaults against women most commonly occur in the home and that family members or friends were the most likely perpetrators of physical assaults on women, and that, of those women who were physically assaulted, 46% (780,500) were assaulted by a current or previous partner.[ii]

Given the statistics on domestic violence, it is important to seek help immediately in the event of a violent spouse.

Steps you can take to protect you and your children in the event of an abusive relationship

 

• Contact the authorities in the event of an abusive spouse.
• File for a Family Violence Order. Such orders may forbid one parent from coming within a set distance of another parent or stalking or harassing them.
• File for a Child Protection Order. Child Protection orders are made by a state Children’s Court when it is believed that a child is in need of protection from a spouse. In some cases, children can sometimes be included on family violence orders made for a parent.
• Contact a Family Lawyer for advice as to the best way to protect you and your children.
• Contact a Family Relationship Centre if you feel you or your children may benefit from their counselling services.

Family Relationship Centres have 5 major roles:

 

• Family Relationship Centres are a government-initiative that assist separating parents in making the transition from parenting together to parenting apart.
• They provide seminars on abusive relationships and what you can do if you are in an abusive relationship.
• Individual advice and free mediation when parents separate.
• Assistance in resolving ongoing disputes about post-separation parenting arrangements.
• Assistance in resolving child support issues.

How Do I File for A Divorce?

 

1. Complete the Application using the File for Divorce Kit[iii]

While the Application for Divorce Kit can be filed without a lawyer, it is recommended that an applicant seeks the counsel of a lawyer to ensure that filing is completed accurately, and in accordance with deadlines. The lawyers at Owen Hodge Lawyers can provide legal advice on how to proceed with a divorce.

2. Sign the Application for Divorce before a lawyer, Justice of the Peace, or other person authorised to witness affidavits in your state/territory.

3. File your Application (by hand, post, or at a family law registry).

If you decide to file for divorce without a lawyer, you must serve a sealed copy of the Application for Divorce to your spouse:

• At least 28 days before the hearing if your spouse is in Australia
• At least 42 days before the hearing date if your spouse is overseas

4. Attend the Hearing

• If you have made a sole application for divorce proceedings, and there is a child of the marriage under the age of 18 years, you must attend the court hearing unless extenuating circumstances prevent you from attending.
• If there is no child of the marriage aged under 18, you are not required to attend the hearing (this applies to sole and joint applications)
• If you have made a joint application and there is a child of the marriage under 18 years of age, neither you nor your spouse are required to attend the hearing.

5. The Outcome of the hearing:

• If your divorce application is successful, the Court will grant a divorce order. If your divorce application is not successful, you may be required to provide further information before it is granted.

What to Expect for your child after legal proceedings:

• A Court-ordered Child Violence order may be made to protect you and your child from a violent spouse.

• Allegations of spousal violence or parental child abuse accompanied by evidence of strong weight appear to influence court orders.[iv] If you or anyone you know has experienced spousal violence, it is important to keep any records of such violence (emails, records, photographs, letters, etc).

• If a Court-ordered Child Violence order is accepted by the Court, your child may be granted the ability to stay with the non-violent spouse.

• A visitation and order schedule may be discussed and issued between the parties.

 

Legal Proceedings of Divorce: The Division of Property

 

In regards to the division of property, Courts will generally regard the division of property dependant on the financial contributions made to the marriage, and concern for the future welfare of the children, in the event of domestic violence. [v]

In determining the distribution of property under the Family Law Act (1975),[vi] the Judge will perform the following functions:

• Determine the assets of the marriage the Court is empowered to distribute.
• Determine what portion of the matrimonial asset pool each party to the marriage will receive.
• Determine a final property order which is just and equitable in the circumstances and in line with determinations made in the first 2 clauses.

Owen Hodge Lawyers have a knowledgeable staff of lawyers that are patient, understanding, and helpful in your time of separation. Owen Hodge Lawyers are committed to providing hassle-free service to ensure that you and your loved ones transition seamlessly in your divorce proceedings. Contact us today at 1800 770 780 or via email at [email protected] to schedule a consultation with our Sydney-based family lawyers.