Divorce order

Once the court makes a finding that all requirements for a divorce are satisfied, the court will make a divorce order (the decree nisi). A divorce becomes final and binding when a divorce order (the decree absolute) issues one month from the date the divorce was granted, or such other time as ordered by the court.

Since February 2010, the Federal Circuit Court will only issue a digital certificate of divorce. It is recommended that on divorce, a party make a new Will to reflect their new situation.

Ability to remarry

Once a divorce is final and the court has issued a divorce order, both parties are able to remarry. When filing their Intention to Marry, a divorced party is required to provide proof of their divorce. Since February 2010 the Federal Circuit Court will only issue a digital order with an electronic seal and signature.

Before the date of finalisation of the divorce, both parties are still legally married and it is a criminal offence to marry another person.

See Ability to remarry.

Effect on wills

The finality of a divorce order also may affect any nominations made to the former spouse in a party's Will and it is advisable, after a divorce order has issued, for both parties to review their Wills, as well as any nominations they may have on both superannuation entitlements and life insurance entitlements. The effect of divorce on a party’s Will is outlined in the applicable legislation of the state or territory in question. It may be prudent for your client to obtain advice from an estate planning lawyer prior to any application being filed.

In NSW, if you divorce after you make your Will, any gift to a former spouse is revoked. Your spouse's appointment as executor, trustee or guardian in the Will is also cancelled, but will not cancel an appointment of a former spouse as trustee of property left on trust for beneficiaries that includes your children and the former spouse.

See Effect on wills.

Effect on property

One of the most disputed areas of litigation arises once the final divorce decree is issued. Parties have 12 months in which to commence property settlement proceedings. Where the court finds that it is just and equitable, under s 79 of Family Law Act 1975 (Cth) it may order that property held either jointly or solely may be transferred between the parties. A party may be ordered to pay spousal maintenance and creditors may also have a claim on marital property in the court process.

See Effect of divorce on property.

Appeal

Like many other aspects of family law there is an appeal process in relation to a divorce which is commenced by filing a Notice of Appeal with the Family Court.

A divorce may also be rescinded prior to the divorce order coming into effect, that is, prior to the final divorce order issuing from the Federal Circuit Court (or, in Western Australia, from the Family Court of Western Australia).

See Appeal.