Divorce and Inheritance Laws in Australia: What You Need to Know
Divorce and inheritance are two critical aspects of family law that can significantly impact individuals and families in Australia.
Our property settlement lawyers will run through the intricacies of divorce and inheritance laws in Australia, shedding light on what individuals should consider when navigating these complex legal matters.
Divorce Laws in Australia
Australia operates under a no-fault divorce system, where couples can obtain a divorce without proving the other party’s fault or wrongdoing.
To file for divorce, either spouse must meet the following eligibility criteria:
1. Separation: The couple must have lived separately for at least 12 months before applying for a divorce. If they still live together under one roof during this period, they must provide evidence of their separation.
2. Jurisdiction: Either spouse must be an Australian citizen, have permanent residency, or consider Australia their home and have lived there for at least a year before applying for a divorce.
Upon meeting these requirements, the divorce process can begin by applying to the Federal Circuit Court of Australia. After the court grants the divorce, the dissolution of the marriage is finalised one month and one day after the hearing.
Inheritance Laws in Australia
Inheritance laws, also known as succession laws, govern the distribution of a deceased person’s assets among their beneficiaries.
These laws apply when a person dies with or without a valid will. In Australia, inheritance laws are primarily determined at the state and territory levels, as they fall under their jurisdiction.
Key aspects of inheritance laws include:
1. Testate Succession: When a person dies with a valid will, their estate will be distributed according to their wishes outlined in the will.
2. Intestate Succession: When a person dies without a valid will, the intestacy rules come into play. The distribution of assets will follow a predetermined hierarchy, which typically prioritises the spouse and children, followed by other relatives.
Effect of Divorce on Inheritance Rights
It is essential to note that divorce does not automatically revoke or nullify a person’s inheritance rights in Australia.
1. Intestacy Rules: Australian law determines the distribution of the deceased’s assets if a person dies without leaving a valid will (intestate). The surviving spouse may be entitled to a significant portion of the estate, especially if no children are involved.
2. Updating the Will: To prevent an ex-spouse from inheriting, it is crucial to update the will after divorce. When an individual remarries, their will is automatically revoked, but this is not the case with divorce. Therefore, it is essential to create a new will that aligns with the individual’s current wishes and circumstances after divorce.
3. Binding Financial Agreements: Couples who want to protect their assets in the event of a divorce can enter into a Binding Financial Agreement (BFA) before or during marriage or after separation. A BFA allows individuals to specify how their assets will be divided in case of divorce, potentially safeguarding inheritance rights.
Helping Our Clients: Divorce and Inheritance
We received a call from Carlos, a divorced engineer seeking our assistance updating his will to safeguard his assets and prevent his ex-spouse from inheriting.
During our meeting, we carefully reviewed his existing will and divorce decree to assess the legal implications and potential risks.
We drafted a comprehensive new will that addressed his concerns and distributed his estate according to his preferences, keeping his loved ones in mind.
By taking these steps, we empowered Carlos to secure his assets and provide for his chosen beneficiaries, ensuring his peace of mind and a stable financial future.
Always Seek Legal Advice: Divorce and Inheritance
Navigating divorce and inheritance laws in Australia can be complex and emotionally challenging.
Understanding the legal implications of divorce on inheritance rights and taking proactive steps to update the will and protect assets are essential aspects to consider.
Director of Melbourne Family Lawyers, Hayder manages the practice and oversees the running of all of the files in the practice. Hayder has an astute eye for case strategy and running particularly complex matters in the family law system.