November 6, 2018

How to get a divorce

If you have finally decided to end your marriage, to be recognised as no longer married at law, then you must consider how to go about getting a divorce.

You may apply to the Federal Circuit Court of Australia (soon to change its name) for a divorce order once you have gone through a separation period of 12 months. Under Australian Family Law since 1975, there is only one ground for divorce: that the marriage has broken down irretrievably. It does not matter why separation occurred, if your spouse does not want a divorce or if you or your spouse are perceived as being at fault. The divorce will be granted provided that the legal requirements have been met.

A divorce application can be made by one party or jointly if the parties agree. There are strict requirements for filing and serving divorce applications and further requirements if the parties have lived under the same roof during the 12 months leading up to the application.

It is important to understand that a divorce legally terminates your marriage, but it does not deal with issues such as a family law property settlement or child custody issues.

You can apply for a property settlement at any time after separation. Under the Family Law Act 1975, parties have only 12 months from the date the divorce becomes final in which to apply to a Court for a property settlement. In exceptional circumstances, a party can make an application “out of time” by seeking special leave of the Court. Due to this time limit, a divorce application is usually made after all property, financial and all child custody matters have been resolved.

The following legal requirements must be established before the Court will grant a divorce:
  1. that the Federal Circuit Court of Australia has jurisdiction;
  2. that there is a legal marriage between the parties;
  3. that the parties have been separated for 12 months, the marriage has broken down irretrievably and there is no likelihood of a reconciliation;
  4. where there are children of the marriage who are under 18 years of age, that the current arrangements for the care, welfare and development and the proposed future arrangements are proper in all the circumstances; and
  5. where it is a sole application for divorce and not a joint application, the proper service of the divorce application has been effected on the other party and they have been given sufficient notice of the divorce hearing.

Although anyone can make a divorce application without the need or services of a lawyer, it is always advisable to seek the help of a divorce lawyer to ensure that the legal requirements have been met, that the application has been completed correctly, signed correctly and to the standard expected by the Court and that delays are avoided due to any or all of the above not being met or satisfied.

Not all divorce applications are straightforward and complications can arise. Clear examples of where complications may exist could relate to where there are children of the marriage; it is not a joint application; the parties do not agree on a separation date; time is of the essence (particularly where a party wishes to remarry); the other party is overseas; the other party is not contactable; or the parties have been separated but still living together.

If you require an explanation of any of the matters set out in this article then you can contact Don Gayler on 4124 7100.

We can provide a plain English explanation of how divorce will work for you. Remember, if you are in the process of considering obtaining a divorce from your partner then you want the best outcome so you can to move onto the next stage of your life.