Divorce is a traumatic event for most people; a recognition that marriage and all it entails has come to an end and that there is no prospect of reconciliation between the couple.
To grant a divorce in Australia, the law is not concerned with the causes behind the decision to end the marriage. Under the Family Law Act 1975, Australia maintains a ‘no-fault’ approach to divorce. Instead, to grant a divorce, the Court is only interested in determining that the union has broken down and that there is no reasonable possibility the couple will resume the marriage.
Are there other hurdles before you can apply for a divorce? We’ll provide more details in this article but if you are in a position where you believe your marriage cannot be salvaged and you would like to formally end it, contact Law By Dan today.
The divorce process
To be eligible to apply for a divorce in Australia there are a few key initial criteria you need to meet, among which are:
- You were born in Australia, or became an Australian citizen by descent (i.e. you were born outside Australia but at least one parent is an Australian citizen and your birth is registered in Australia).
- You are an Australian citizen by grant of Australian citizenship (which you’ll need to prove via a citizenship certificate).
- You lawfully reside in Australia and intend to continue living here. You must also have been living in Australia for at least the last 12 months and have proof of this fact, such as a valid passport or valid current visa.
The other key requirement for a divorce application is that the parties to the marriage have been living separately for at least 12 months and one day.
The word ‘separately’ can encompass a couple who have separated, in terms of their relationship, but still, live under the same roof. If this describes your living arrangement, however, you will need to prepare an affidavit to accompany your divorce application that attests to the fact the status of the marriage had changed.
If your marriage has lasted less than two years, you will also need to file a counselling certificate with your divorce application. This certificate is provided after attending a session/s with a family or nominated counsellor to discuss whether there is a possibility you and your spouse could reconcile. If you do not attend counselling to obtain a certificate, you will need to prepare an affidavit for the Court seeking its leave to apply for divorce.
Even in the circumstance where your marriage lasted less than two years, you and your spouse still need to have been separated for 12 months before applying for a divorce.
Solo and joint applications
Divorce applications can either be made by one partner to a marriage or by both. The processes for each are slightly different in terms of your obligations.
A solo application for divorce means that the person who makes it is the applicant and the other spouse is the respondent. In this situation, the applicant is the only person required to sign the affidavit to accompany the application. The application must be ‘served’ on the respondent, either by post or by hand. Where the respondent spouse is in Australia, the documents must be served at least 28 days before the Court hearing, or 42 days if they are located overseas.
In a joint application, both parties are referred to as joint applicants. One party can complete the application so long as the other party is provided with a copy to review and sign. Both parties must also sign the affidavit to accompany the application.
When one party makes a solo application for divorce, it’s often the case that the other party either does not agree with the decision to make the application or agrees with the need for divorce but does not agree with the facts included in the application. In this situation, the divorce application can be opposed only if you can show either that you and your spouse have not been separated for 12 months as stated in the application, or that the Court does not have jurisdiction.
To oppose the application you must complete and file a ‘Response to Divorce’ which sets out the grounds by which you think the application for divorce should be dismissed. You must also appear in court in person on the hearing date. Failure to do so may see the application decided in your absence.
A Response to Divorce challenging the facts in the divorce application must set out your corrections and objections to those facts, however minor. You do not need to appear in Court after filing this response.
What happens when there are children from the marriage?
If there are children under 18 years of age who will be affected by your divorce, you need to provide details of their living arrangements within the divorce application. These details should encompass where the children live, their schooling, care arrangements before and after school, the specifics of their health, their current contact with each parent and any financial arrangements between the parents relating to the children.
‘Children’ includes any child born from the union, including those born before the marriage or even after separation; any child adopted by you and your spouse, or; any child who was treated as a member of your family before your final separation such as a step-child or foster child.
Where a solo application for divorce is made and there are children under 18 from the marriage, the applicant needs to attend the Court hearing. This is not the case if a joint application is made.
It should be noted that parenting arrangements and issues such as financial maintenance of one spouse by the other are not decided as part of divorce proceedings. Once a divorce is finalised by the Court, you have 12 months to apply to the Court for a division of property from the marriage or spousal maintenance.
Seek expert legal advice
Divorce is a trying and stressful time for everyone involved but with preparation and good legal representation, the difficulties can be somewhat mitigated.
Family law issues such as divorce are one of Law By Dan’ specialty areas. We have a trusted reputation for representing our client’s interests efficiently and effectively to get them through one of the most challenging times in life.
Law By Dan is a network of lawyers across Australia with strong expertise, experience and proven track records.