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The divorce process explained

Nov 14, 2019

The divorce process explained

Divorce is the well known legal concept of ending ones marriage. What is less well known or understood is that in Australian law we have an established principle of nofault divorce. What is even less well known is the mechanics surrounding what is actually done, and the steps involved.

In this article we will endeavour to explain the process in simple terms.

Today in Australia, with the ‘no-fault’ principle, a Court does not consider why the marriage ended, nor does the Court require consent from both parties in order to make a divorce order.

The only ground for divorce is that the marriage has broken down irretrievably. That is, there is no reasonable likelihood that the parties will get back together. A divorce may be obtained in either the Family Court of Australia or the Federal Circuit Court.

Separation

In Australia, spouses must have been separated for at least 12 months prior to applying for divorce.

If the spouses have separated but remained living under the same roof for any period (or are currently living under the one roof), it would be wise to obtain legal advice because there are further requirements that the Court will consider. For example, did the parties family and friends understand and consider the parties separated?

Spouses married less than two years who want to divorce must attend counselling with a family counsellor or nominated counsellor to discuss the possibility of reconciliation with their spouse, or if they have not attended counselling, seek permission of the Court to apply for a divorce.

Applying for a divorce

To apply for a divorce the parties must first satisfy the Court that they have a valid marriage. A marriage certificate, with a sworn translation into English (if necessary) is needed. If no marriage certificate is available, the Court may require the applicant to provide some alternate evidence of the marriage prior to granting divorce.

A person can apply for a divorce in Australia if either party regards Australia as their home and intends to live in Australia indefinitely, or they are an Australian citizen by birth, descent or by grant of Australian citizenship, or ordinarily live in Australia and have done so for 12 months immediately before filing for divorce. If the applicant is relying on being a citizen of Australia by grant of citizenship then they must file a copy of the certificate of citizenship.

As mentioned above, they must satisfy the Court they have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life. It is possible to live together in the same home and still be separated.

Service of the documents

Once the Divorce Application has been filed with the Court the applying party is required to serve the documents on the other party. Once the documents are served, an affidavit of service should be filed.

Service must occur at least 28 days before the Court hearing if your spouse is in Australia, and at least 42 days if they are overseas.

You cannot serve the documents on your spouse yourself. We can assist you by engaging a professional process server on your behalf.

Arrangements for any Children

The Court will usually not grant a divorce in Australia unless it is satisfied that appropriate arrangements for any children are in place. That does not mean those arrangements need to be formal, nor does it mean that there is no dispute, but rather that at the time of the divorce hearing, the children are being appropriately cared and provided for.

The Court hearing

As mentioned above the only ground for divorce is that the marriage has broken down irretrievably and there is no reasonable likelihood that the parties will get back together.

The party applying for a divorce must attend the divorce hearing where they made the Application for divorce themselves and/or where they have children who are under 18 years of age.

If the parties do not have children under 18, or if they made a joint Application for divorce, they can both choose not to attend the divorce hearing.

A party can only oppose the divorce where there has not been 12 months separation as alleged in the application, or the Court does not have jurisdiction.

Divorce hearings are usually conducted by a Court official known as a Registrar. The Registrar may ask the applicant questions about the information in their Application or about the service of the Application on the other party.

Where young children are involved, the Registrar may ask about arrangements for the children, such as which parent they live with, how often they spend time with the other parent and how they are financially supported.

If the Registrar is satisfied that the grounds for divorce have been established and that the Application has been properly served on the other party (if your Application was not made jointly), the Court will grant the divorce.

The divorce order will become final one month and one day from the date of the hearing, at which time a Divorce Order will become available.

What next?

It is important to note that the granting of a divorce does not decide issues about property and maintenance or parenting arrangements for the children.

If parties want to make arrangements about these issues they can make an agreement with their former spouse and file it with a Court, or seek orders from a Court if they cannot reach an agreement. For property and maintenance matters, if you seek the Court’s assistance an application must be made within 12 months of granting divorce.

Regardless of which course of action you choose to take, it is prudent to seek advice from an experienced lawyer.

For people wanting to remarry they should not plan to remarry until the divorce order is finalised. In most cases, this is one month and one day after the divorce hearing, however, you should not assume the divorce will be granted at the first Court hearing as there may be additional evidence required. It is best to allow more time.

Summary

Whilst it is possible to act without legal representation when applying for a divorce, many people find that they do not have the time to devote to this process, or find it difficult to navigate what can be complex legal issues, and prefer to undertake the process with a lawyer highly experienced in divorce law who can provide advice and assistance at any stage of the divorce process.

This article is intended to provide general information only. You should obtain professional advice before you undertake any course of action.

If you know someone who could benefit from this advice please suggest they contact us on 03 8415 5600 or email reception@hartleyslawyers.com.au.

Phone Number: 1300 1 LEGAL
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