Paula Phelan is a Family Lawyer with Specialist Accreditation in this area from the Queensland Law Society. She has been a lawyer for 21 years and is the director of Phelan Family Law, a Rockhampton legal firm specialising in Family Law only.
In my last column I spoke about how the law works in relation to getting a divorce.
This week I want to expand on this topic further. Many couples who have separated sort out their property settlement and then they try to get on with their lives, often without tying up the loose ends.
You don’t need to process a formal divorce through the courts before you can commence a property settlement. As a result, many people sort out their property affairs first without finalising their divorce as well.
This can have disastrous consequences as the law does not regard a marriage as ended until the divorce is formally granted.
So even though you may have affected a full property settlement and transferred assets and or cash to your spouse, you are still legally married until the divorce order is finalised.
This can have a dramatic effect where you have an old will that leaves your assets to your husband or wife even though you may have been apart for years.
Any gifts in that will to your estranged husband or wife will still be valid in the event of your death. This is the case even though you have already distributed matrimonial property in a prior settlement.
It is important to double check that you have properly processed your divorce through the court system.
In most cases the divorce order takes effect one month and one day after the divorce is granted.
Another area where the failure to finalise your affairs can be troublesome is with subsequent marriages. Following a separation many people eventually remarry. For some it happens quickly whilst for others it maybe years later.
The wedding plans can come to an abrupt halt when one party finds out that their earlier divorce was never finalised, and they are still legally married.
If you’re are intending to re-marry make sure as a starting point that you are actually divorced.
You should not make plans to marry on a particular date unless this fact has been established.
If you wish to make wedding plans before your divorce is finalised, you must lodge with an authorised celebrant a ‘Notice of Intended Marriage’ under the Marriage Act. This must be done at least one month before the date that the marriage is to be solemnised.