If you’re thinking about filing for divorce, you already understand the emotional toll it can take. Hopefully, having a bit more information about the terminology and the process can ease your anxiety.
In Australia, getting a divorce is treated as a “no-fault” legal process. This means that you don’t have to list or prove the grounds for divorce. You are entitled to ask for a divorce when your marriage has “irretrievably broken down,” even if child custody is an issue or you haven’t finalised a property settlement.
Here’s what you need to know:
What Does “Irretrievably Broken Down” Mean?
This is a cumbersome legal phrase that means that you’ve tried your best to have a go at your marriage but, for whatever reason, it is no longer working.
It is a requirement that must be satisfied before filing for divorce. The court will find that you have met this requirement if you have been separated for at least twelve months.
Why Do You Need A Twelve-Month Separation?
If you can demonstrate you’ve been separated for twelve months, then you are able to file for divorce. A twelve-month separation proves to the court your marriage has irretrievably broken down and there is no chance you will get back together.
You can meet this requirement even if you reside in the same home as your spouse, as long as you are leading separate lives and one party has communicated the marriage is over.
How Do You Prove That You Are Leading Separate Lives?
Proving that you’ve led separate, independent lives for the past twelve months is sometimes tricky when you’ve lived in the same house. However, this situation happens fairly often when finances are tight or parties want to maintain some normalcy for the children. Two spouses can easily go about their separate lives while living at the same address.
Evidence from friends, relatives, neighbours and/or co-workers can sometimes be instrumental in helping the court understand the sincerity of your separation. If you have been separated under the one roof, you will need to file an affidavit with your divorce application. Your lawyer will help you prepare the documents to ensure you’ve met this requirement.
How Do You File Your Application For Divorce?
Once you have been separated for twelve months, you can file your application for divorce with the courts. You can file it by yourself (known as a sole application) or together with your spouse (known as a joint application).
In addition to paying a filing fee to the court, you will also need to provide a copy of your marriage certificate and evidence either party is an Australian citizen or is domiciled here (e.g., copy of an Australian passport).
If you file a sole application for divorce, you will need to serve a copy of your court documents on your former spouse. Although you cannot personally serve your ex, a process server can do this for you. This is to ensure your spouse is aware of your application.
Do You Need To Attend Your Divorce Hearing?
When you file your application for divorce, you will be given a divorce hearing date, at least six weeks away. Generally, you are only required to attend the divorce hearing if you have children under eighteen years of age.
There will normally be other couples waiting for their hearing at the same time. You’ll need to await your turn to be called before a registrar, who is a senior lawyer who works for the court. Your time before a registrar will vary depending on how long it takes to satisfy them all divorce requirements under the law have been met.
What Type Of Questions Will You Be Asked?
Even though the hearing time will be brief, a registrar will want to confirm the information provided in your application and understand whether any arrangements have been made for your children, however you do not need to have a final agreement or orders in place.
You may also be asked about property settlement although, again, it is not a requirement to have finalised your property settlement before divorce. A registrar will not make any orders about parenting (previously known as custody arrangements) or property settlement on the day. The only orders they will make will be about your divorce application.
When Will You Be Legally Divorced?
If the court finds that you have met the requirements to obtain a divorce, the divorce will be granted. The order granting your divorce will be finalised and take effect in one month following the hearing. You’ll receive the final order by mail after this time has expired.
If you are considering separation or divorce, contact Taylor & Scott. We have a dedicated Family Law team that can answer your questions about the process as well as parenting and property matters.
We can answer your questions about the process and how it will affect your property and child custody rights.
One of our experienced lawyers will be happy to provide a no-obligation initial assessment of your case, drawing on the firm’s century of legal experience.
At Taylor & Scott “We Care For You”.
