Divorce is the legal dissolution of a marriage.
People often use the term “divorce” to refer to separation and the dividing of assets, however the Courts treat divorce as an independent process. A Divorce Order does not determine issues about property and maintenance or parenting arrangements for the parties’ children. An Application for Divorce is simply a formal application to the Court to legally terminate a marriage between two individuals.
In Australia, there is a no-fault system of divorce. When granting a divorce, the Court does not consider why the marriage broke down, only that the marriage has broken down and there is no reasonable likelihood that the parties will reconcile.
When can I apply for a Divorce?
In order to apply for a Divorce, a party to a marriage (or both parties in the case of a joint application) must satisfy the Court that:
1. One of the parties to the marriage:
a. regards Australia as their home and intends to live in Australia indefinitely; or
b. is an Australian citizen by birth, descent or by grant of Australian citizenship; or
c. ordinarily lives in Australia and has done so for 12 months immediately before filing for divorce.
2. The marriage has broken down irretrievably.
This ground is established if the parties have been separated for a continuous period of 12 months immediately preceding the filing of the Application for Divorce.
Separation often occurs when a party leaves the former matrimonial home however separation can occur when the parties are living under the same roof.
3. The parties hold a marriage certificate.
If the parties were married overseas and their marriage certificate is not in English, the applicant will need to have the certificate translated.
4. Appropriate arrangements are in place for children.
When there are children under the age of 18, parties must demonstrate that there are appropriate arrangements in place for the care of the children. These arrangements do not need to be formalised in order to obtain a Divorce.
What is the process for applying for a Divorce?
In order to apply for a divorce, parties to a marriage must file an Application for Divorce in the Federal Circuit Court of Australia along with a copy of their marriage certificate and the court filing fee.
Where there are children of the marriage under the age of 18, the applicant will need to provide brief information about the children’s care arrangements, including housing, education, health, financial support and communication with each parent. Note that, providing this information as part of an Application for Divorce does not formalise children’s arrangements. The Court requests this information because it can only grant a Divorce Order if satisfied that there are proper arrangements in place for the care of the children.
If the parties have separated under the one roof, they will also need to provide evidence in the form of an Affidavit to the Court demonstrating that they are not living together as husband and wife, despite cohabiting. For example, parties might indicate that separation has occurred by way of a change in sleeping arrangements, a reduction in shared activities, separation of finances or notifying family and friends.
How long does it take to get a Divorce Order?
Once the Application for Divorce is filed, it will be listed for hearing before a Registrar of the Federal Circuit Court within approximately 8-12 weeks. The other party must be served with a sealed copy of the application for Divorce unless both spouses have made a joint application.
At the hearing, the Registrar will make a Divorce Order if all the requirements have been met. The Divorce Order will take effect exactly one month and one day from the date of the hearing. Therefore, on average, an Application for Divorce can take up to 4 months to finalise after being filed.
Do I have to attend the Divorce hearing?
If there are children under the age of 18 years, the applicant must attend the hearing unless the Application for Divorce has been made jointly.
If there are no children under the age of 18 years, whether or not the Application for Divorce was filed solely or jointly, the applicant does not need to attend the Divorce hearing.
How Farrell Family Lawyers can help as Divorce Lawyers
Our experienced lawyers can advise you of your rights and responsibilities before applying for a divorce. We can prepare your Application for Divorce and appear at the hearing on your behalf if attendance is required. Alternatively, we can guide you through the process to complete your own Application. Contact us today to find out how we can help you.
Call us today on +61 3 7020 6542 for a discussion about your Divorce And Separation matter.