Separation & Divorce
What is a divorce?
It is the legal dissolution of a marriage. Divorce proceedings only result in the obtaining of a divorce. They do not resolve property or parenting issues.
The only real link between divorce & parenting proceedings is that divorce may be delayed if the Registrar is not satisfied that proper arrangements have been made for the care welfare & development of the children of the marriage.
When can you obtain a divorce?
When the marriage has broken down irretrievably, as evidenced by a twelve (12) month separation. There is no time restriction on you obtaining a divorce. However, once your divorce becomes final, you only have 12 months in which to try to resolve property and spousal maintenance issues. If you have not resolved these issues within 12 months you will need to apply for leave to issue an Application out of time and the court may refuse to give you leave to take court action in respect to these issues.
What is separation?
Parties are separated when they stop living together as husband and wife. This can happen when one party moves out of the former matrimonial home or the parties can be separated under the one roof provided certain requirements are met and you can establish to the Court that you both live separate lives.
To prove that you have been separated under the one roof you will need an affidavit from at least one independent witness who can testify as to your living arrangements. You will also need to file an affidavit providing evidence as to such arrangements. We recommend that you engage a solicitor to assist in this regard as an Affidavit is a sworn document and should be drafted with care.
If the separation is disputed, the court compares your living arrangements before separation to after separation. For example the court looks at things which may go to make up the marriage like sleeping arrangements, performance of household services, absence of shared activities, parties ceasing to hold themselves out as a couple, lack of sexual relations between the parties, and the financial arrangements of the parties.
Divorce proceedings are on a no fault basis
The court is not concerned about who may have been at fault in the marriage and they will not allow evidence to be given about it.
What must I prove to obtain a divorce?
- Proof of marriage;
- That you have been separated for 12 months;
- That the marriage has broken down irretrievably and there is no reasonable likelihood of reconciliation;
- Proof that your application for divorce has been served on your ex-partner;
- That you are an Australian citizen, permanent resident or otherwise intend to live in Australia.
Can I oppose an Application for divorce?
Yes. However if you choose to oppose the Application, you must complete and file and serve a Response to Divorce Application. A common objection is a dispute in respect to the actual date of separation.
What happens if we get back together for some time?
A short reconciliation of less than 3 months will not affect your ability to file for divorce, on the basis that the two periods of separation before and after the reconciliation (but not including the period of reconciliation) add up to a period of separation of at least 12 months.
Sole application or joint application
Either you or your ex-partner can apply for divorce separately or you can make a joint application.
8 steps to getting a divorce:
- Complete the Application form.
- Swear or affirm the Application before a Justice of the Peace, Lawyer or other authorised person.
- Make 2 photocopies of the Application.
- File the following documents in the Federal Magistrates Court: a) the original and 2 copies of the Application form; b) the fee or an Application to waive the filing fee; c) Marriage Certificate or certified copy of same;
- The registry stamps your application and gives you two copies of the Application and the information brochure ˜Marriage Families & Separation. The registry, will give you a file number and a time and date for a hearing.
- If you filed a joint application, you both keep one copy of the application and the brochure. If you applied on your own, you must ‘serve’ a sealed copy of the Application and the information brochure on your spouse at least 28 days before the hearing.
- You must come to the court for your hearing at the time and date entered on your Application if you have children under 18 and you are the Applicant. If you do not have children under 18, you may not have to attend.
- At the hearing, if the court grants the divorce, it will issue a divorce order. After one month, this order will take legal effect and a divorce certificate will be issued to the parties.
How do I serve the application for divorce on your ex-partner?
You must arrange to serve the Application for divorce upon your ex-partner. You cannot do so yourself. You must then obtain an Affidavit of Service from the person serving the application.
What if you do not know where your partner lives?
You can apply to the Court for the divorce to proceed without the application being served. You will need to file an Affidavit setting out the efforts you have made to contact your ex-partner. It is important to consider engaging a solicitor to assist in this regard as well as to appear before the Court.
Do You Have To Attend The Divorce Hearing?
You do not have to attend unless there are children of the marriage under the age of 18 (though if there are children under 18 and you are making a joint application and you have requested in the Application that the matter be dealt with in your absence, then attendance is not required).
However, in some cases, the Court may request that you attend the hearing.
We recommend that you attend so that you may answer any questions the Registrar may have about your application and avoid unnecessary delay.
How long will it take?
About 3 months from the date of filing until the divorce is final. This is only an estimated time and may in fact be longer if there are problems.
Your divorce may not be granted at the first hearing. The Court may ask you for further information. You cannot remarry until your divorce becomes final.
Proper arrangements for children under 18
If you have children under 18 years, the court wants to know that proper arrangements have been made for the care welfare & development of the children. The Court will be concerned about whether the children are having contact with both parents and what arrangements are in place for the financial support of the children, their housing, supervision and education.
If it is less than 2 years between the date of marriage and the date of filing the application, then there is a requirement that you and your ex-partner attend counselling to show that you have considered reconciliation. This counselling is compulsory.
The counsellor will provide you with the Counselling Certificate for Applicants married less than 2 years (signed by an approved mediation or counselling agency) to show you have attended counselling or mediation in compliance with this requirement. If there are special circumstances that make mediation impossible or inappropriate, you need to advise the Court as to same and seek that this requirement be dispensed with.
When does a divorce becomes final?
At the divorce hearing, the Registrar, if satisfied of all relevant issues will grant a Divorce which becomes final in one month and one day from the date the decree nisi is granted. This time frame may be shortened only in special circumstances.
You will receive a Divorce Order in the mail and if you do not receive it contact your solicitor or the Court, quoting your file number. The parties are free to marry once the Divorce Order is made.
How does my divorce effect my will?
The effect of your divorce on any current will is to nullify any gift or reference which your will makes to your former partner. You should make a new will and do not need to wait until you are divorced to update your will.