After you have been separated for a period of twelve months, you can apply for a Divorce. Remember: it takes two parties to marry, but only one of them to divorce. You cannot force someone to stay married to you.
The creation of no fault divorce in Australia was intended to reduce conflict – which it has achieved – but the emotional impact on the parties remains. In Australia, the court must be satisfied the marriage has irretrievably broken down and the way that it determines that is by being satisfied the parties have been separated for at least twelve months immediately prior to the filing of the application for divorce.
Parties can be accepted as separated even though they were still living under the same roof during that minimum twelve month period.
Taylor & Scott can assist in preparing the necessary evidence to satisfy the court that separation was genuine, notwithstanding part of it was under the one roof. That is often the evidence of a third party – a friend or a relative – in addition to that of the applicant. It is necessary to show the parties led separate lives and held themselves out to others as doing so.
If there are children of the relationship that are still under the age of eighteen years, the court must also be satisfied that proper arrangements have been made for their ongoing care. Applications can be made by the parties together although often, it is just one party that makes the Application. In the case of the latter, the other party must be served with a copy of the Application at least 28 days prior to the divorce hearing (or 42 days if they are living overseas).
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