Divorce is the formal step of legally dissolving a marriage after both parties have been ‘separated’ for 12 months. A divorce order can only be made where the court is satisfied the marriage has “irretrievably” broken down, proven by the parties having lived apart for a year or more.
Once a divorce occurs, important time limits arise for certain actions to occur. Within 12 months of the date, the parties must have reached a formal agreement about their property settlement and spousal maintenance or have started court proceedings for financial orders in that time frame.
If you have children under 18 years of age, the court needs to be satisfied that the care arrangements for the children are proper before granting a divorce. It is also important to note that changes to your will also occur upon your change in relationship. Once a divorce order is made final, the parties are free to remarry.
What is the effect of divorce on your will?
In Queensland, when a person makes a will and later divorces, any provision appointing the former spouse as executor or trustee will be revoked and deleted. Similarly, any gifts of property, cash or anything else to the former spouse will be automatically revoked. The divorce doesn’t make the whole will null and void. Apart from appointments as executor and gifts to your former spouse, the balance of the will can remain in full force and effect.
Property settlement
You don’t need to have finalised your divorce before you can commence a property settlement. You can commence shortly after separation.
Many people finalise their property settlement without worrying about getting a formal divorce. What they don’t realise is that separation alone doesn’t make gifts to their former spouse in a will invalid. It has to be a divorce.
The trap is that if you reach a property settlement and have an old will, any gifts to your former spouse are still valid until a divorce is finalised. To avoid a double gift, it is imperative that you finalise your divorce as soon as possible. Otherwise, your former spouse may receive a second allocation of your assets upon your death pursuant to the old will.
留言