If you believe your marriage may end in divorce or perhaps you and your partner have discussed it, you may be overwhelmed and unsure where to begin.
I hope that this blog post will give you some guidance, insight and clarity when embarking down the road to divorce.
You are not alone
Before we jump in, I wanted to start with some reassurance- you are not alone in this. Current Australian statistics show that 1 in every 3 marriages ends in divorce. When going through a separation or divorce, it can feel isolating. This is the time to reach out to friends and family for support, and to ensure that you have a skilled and empathetic lawyer on board.
Requirements for divorce
It is important to firstly note what is required to get a divorce in Australia. You or your spouse must:
– consider Australia your home and intend to live here indefinitely, or
– are an Australian citizen by birth, descent or by grant of Australian citizenship, or
– ordinarily live in Australia and have lived here for the 12 months before filing for divorce.
To get a divorce in Australia you only need to show that there has been an irreparable breakdown of the relationship. This breakdown is established by 12 months of separation.
Courts will grant a divorce when it’s satisfied that your marriage has broken down irretrievably and there is no reasonable likelihood of you resuming married life. If this established and the period of separation (12 months) has been met, then, even if you do not want the divorce, the other party can apply for a divorce.
It is especially important to show that at least one of you has decided the marriage is over if you separate under the one roof. If this is the case, you may need to give the Court further information to establish the separation. For example, proof that your family and friends know you are separated or communications to your spouse that the marriage is over.
The amount of time you and your partner are separated must total one year, however if you reconcile for longer than three months than the time starts again.
Before you go to court
Before you go to the court for a parenting or property order, it would be wise to consider the other resolution options available. These options include mediation, collaborative law and negotiation. As it stands, you will be required to attend family dispute resolution before applying for a parenting order, except in some circumstances such as urgency or family violence. If you and your partner are successful in reaching an agreement, this can be recorded as a Parenting Plan, Consent Order or Financial Agreement and you will not have to attend Court.
This is where finding a capable and empathetic mediator will come in handy. If you are interested in undertaking mediation with your spouse, get in touch. I am an experienced and diligent mediator that will work with you and your partner to reach an amicable conclusion. To find out more about my mediation services click here.
Parenting orders and Property settlement
If you can’t reach an agreement with your former partner, you can apply to the Court for parenting and/or financial orders. There is a common misconception that applying for a divorce also involves these processes, but this is actually not the case. An application for divorce is simply making the declaration that their marriage is over and that there is no reasonable chance of reconciliation. You can apply for Court orders as soon as you separate.
For parenting orders the Court will determine what is in the best interests of the children, and for financial and property orders they will decide whether the terms are just and equitable.
Applying to the Court for a divorce
The process for applying for a divorce is relatively straightforward. Once the decision has been made to apply for a divorce, an electronic application must be made to the Federal Circuit Court of Australia through the Commonwealth Courts Portal. You can either file a joint application or a single application.
The application itself will require details relating current residence(s), any arrangements for children under the age of 18, and any other relevant Court Orders or agreements in place. In most cases, these types of documents should be attached to the application. You will also need to attach a copy of the relevant Marriage Certificate any documentation sufficiently proving Australian citizenship must also be included with the application
When you lodge your document you are required to select a date for the divorce hearing, which will take place before a Registrar. Should the Registrar grant the divorce, it will take effect exactly one month and one day after the court listing.
Other factors to consider
If you were married overseas you may still be entitled to apply for a divorce in Australia, as long as you meet the requirements as set out at the start of this post.
If you have been married less than two years you will be required to attend counselling to see if the marriage can be reconciled. From there, if there is no resolution you will need to provide the counselling certificate to the Court when applying for a divorce.
I would like more information, where can I go?
For more information you can go to the Family Court of Australia’s online page here or get in touch with me. With over 10+ years of experience in dealing with family law disputes, I provide my clients with suitable legal solutions when discussing a potential separation and its consequences. I have the experience, understanding and compassion to help you.
Click here to contact us and stay tuned for future blog posts that will give more detail on separation, legal documents, after the divorce and more.