Author: Carol Pages, Pages Family Law.
What do I need to know?
In Australia, there is one ground for an application for divorce – that the marriage has broken down irretrievably, as evidenced by 12 months separation, and there is no reasonable likelihood of reconciliation of the marriage.
An application for divorce can be filed by one or both parties to the marriage one year and one day after the separation commenced.
When should I seek legal advice?
We can assist you in completing and filing your divorce application on your behalf, including where you and your former spouse are making a joint application. In most cases this is for a fixed fee, plus the filing fee charged by the Court.
There are some circumstances where it is recommended that you seek the assistance of a lawyer in relation to your divorce application. These include:
- If you and your former spouse have lived under the same roof while separated. This is common where families want to save some of the costs of two households, they are waiting for their home to sell, or they want to minimise disruption on their children;
- If after the date of separation, you and your former spouse lived together again, and then separated again – to confirm whether your 12 months of separation must restart or not;
- Where your marriage was less than two years at the date of separation; or
- Where you are unable to locate your former spouse.
What information do I need to provide?
When you file your application you will need to provide:
- Details of your Australian citizenship, residence or history of residence in Australia;
- A copy of your marriage certificate;
- Details of the care arrangements for any children of your relationship, or children treated of members of your family who were under 18 at the time you separated; and
- Details of any other Court Orders or agreements such as parenting plans.
Do I have to go to Court?
In most cases no. For example, if you are making a joint application, neither party needs to attend Court. There are some cases where you need to attend the hearing, including where you are making a sole application, and there are children of your marriage under the age of 18. The hearing will occur by telephone.
When will my divorce be finalised?
When your divorce application is filed, it is listed for a date for consideration by a Deputy Registrar of the Court. If your application is granted, your divorce becomes final one month and one day later. Your divorce order will then be available to you.
What else do I need to know?
Property division, spousal maintenance, and parenting matters are all dealt with separately to your divorce. If you divorce first, before resolving your property division and spousal maintenance matters, you must file a separate application within 12 months of the date your divorce is finalised, otherwise you will need permission of the Court to apply. It is also advisable to update your Will, Powers of Attorney, and any Binding Death Benefit Nomination form for your superannuation fund when you separate.
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The content of this article is provided for information purposes only and does not constitute legal advice. We recommend that you seek legal advice relevant to your own circumstances and we would be happy to assist you.
Carol Pages of Pages Family Law is an Accredited Specialist in Family Law. If you would like advice about your own separation, please contact Pages Family Law at info@pagesfamilylaw.com.au or on 03 9121 8077.
