Applying For A Divorce
By Danielle Rosano.
Who can apply for a divorce?
In order to apply for a Divorce you must file an Application for a Divorce with the Court and pay a filing fee. You can apply for a divorce by yourself (sole application) or together with your spouse (joint application).
When can I apply for a divorce?
In order to apply for a divorce, either you or your spouse must:
1. Regard Australia as home (or intend to live in Australia indefinitely); or
2. Be an Australian Citizen (by birth, descent or grant); or
3. Ordinarily live in Australia and have done so for 12 months immediately before applying for a divorce.
You must also show the Court that you and your spouse have separated for a continuous period of at least 12 months prior to filing for a divorce. This can include living under the one roof for at least 12 months, provided that you can show that at least one spouse regarded the marriage as over and that this was communicated the other spouse on the day that separation is asserted.
You must also show that you and your spouse were married for at least two years.
What if I have been married for less than 2 years?
You must attend counselling to discuss the possibility or reconciling with your spouse or seek permission of the Court to have this requirement dispensed with.
What is the ground for Divorce?
Under the Family Law Act, the only ground for divorce is that your marriage has broken down irretrievably. This means that you must satisfy the Court that there is no reasonable likelihood that you and your spouse will reconcile and resume married life.
What if I have a child or children under the age of 18 years?
A Court will only grant a Divorce if satisfied that proper arrangements have been made for the safety, care and well-being of any child under the age of 18 years.
What if there has been separation under the one roof?
If this applies to you, you must file additional documents with your Application for Divorce to satisfy the Court that you and your spouse were not living as Husband and Wife during the time that you were separated under the one roof. The document you are required to file is known as an Affidavit (a sworn written statement of fact used to present evidence).
If you are making a sole application, you must file an Affidavit yourself. You should also file an Affidavit of an independent person. An independent person could be a family member, friend, neighbour or any other person who has first-hand knowledge of your separation.
The issues that must be explained include:
1. The change in sleeping patterns
2. The reduction in shared activities and social outings;
3. The reduction in performing domestic chores for each other;
4. The separation of finances; and
5. The reasons why you and your spouse continued to live in the same home after separation.
Can my spouse oppose a Divorce Application?
If your spouse does not agree to a Divorce being granted, they can file a Response to a Divorce with the Court.
In reality, there are few opportunities to oppose a Divorce Application. The main circumstance in which a Response to a Divorce is filed is when the other spouse disputes any of the facts in the Application for a Divorce including the fact that there has been a 12 month period of separation.
Do I have attend a Divorce Hearing?
If there are no children under 18 years, then neither party needs to attend the Hearing.
If there are children under the age of 18 years and a joint application was made, neither party need to attend the Hearing.
However, if there are children under the age of 18 years and a sole application was made, the Applicant is usually required to attend the Hearing.
What about if I want to re-marry?
It is important to remember that your Divorce Order may not be granted at the first Hearing. Further, even if your Divorce Order is granted, it does not become final until one month and one day after the Divorce Hearing.
After getting divorced, what happens with future arrangements for children under the age of 18 years?
A Divorce Order does not decide any issues about parenting or child support. If this is an issue, it is prudent to engage the services of a Solicitor who can assist you in making these arrangements.
The two options available to you are as follows:
1. Attempt to reach agreement with your spouse and file your agreement with the Court (Consent Orders); or
2. If agreement cannot be reached, institute proceedings seeking Orders from the Court.
After getting divorced, what happens with any property settlement process?
As with parenting matters, the granting of a divorce does not decide any issues about property or spousal maintenance.
Most people who separate from their spouse incorrectly believe that their divorce and property settlement occur hand-in-hand. However, the granting of your divorce and your property settlement are two completely separate processes.
The only link between the process of a divorce and a property settlement is that once you are divorced, there is a strict time limit of 12 months from the date of the Divorce Order within which you can file any Consent Orders or commence proceedings in the Court seeking Orders for a property settlement.
Want more information about this article or any other matter? Feel free to contact the author, Danielle Rosano who is a key part of our family law team.
Phone: (02) 9667 1271