Navigating a Divorce
Navigating a divorce can be accompanied by overwhelming stress and uncertainty. However, with a comprehensive understanding of the process, you can approach it with confidence.
Can I get divorced?
To apply for a divorce in Australia, you must be separated for at least 12 months, and you or your spouse must:
be an Australian citizen, or
live in Australia and regard Australia as your permanent home, or
ordinarily live in Australia and have done so for at least 12 months before the divorce application.
If you married overseas, you can apply for a divorce in Australia as long as you meet the criteria above.
If you have been married for less than two years, you will need to attend counselling with a family counsellor and file a counselling certificate or get permission from the court to apply for a divorce without the certificate.
Separation of at least 12 months
The Family Law Act requires that there is an irretrievable breakdown of the marriage, and this is established by showing that you have been separated for 12 months.
Separation is evidenced by factors such as changes in living arrangements, managing finances independently, no longer socialising as a couple, and informing friends and family about the separation.
It is possible to separate and continue to live under the same roof, so long as you have evidence of how your routine and living arrangements changed after separation. This can include who took care of the washing, who cooked meals, and whether you moved to separate bedrooms.
Application for Divorce
A divorce application can be applied for jointly or by one person alone.
Upon application, a divorce hearing date will be set, and you will be advised whether your attendance at the hearing is required.
If there are children aged under 18, a court can only grant a divorce if it is satisfied that proper arrangements have been made for them. You must provide sufficient evidence about the how the child/ren spend time and communicate with each parent, their education, health and financial support.
Once the Registrar in the divorce hearing is satisfied that the other party has been served an application (if applying alone) and the twelve-month separation period has passed, a divorce order will usually be granted. The divorce order then takes effect one month and one day later.
It is important to note that the granting of a divorce only recognises that a marriage has ended and does not determine issues of property settlement or parenting arrangements.
Once a divorce is final there is a time limit of 12 months to apply to the Federal Circuit and Family Court of Australia for property settlement or spousal maintenance orders. If you do not apply within this time, you will need to seek leave of the court. We recommend that you start this process as soon as possible after separation.
Navigating a divorce can be a challenging experience. Understanding the process and seeking professional assistance can help you to navigate the experience with confidence.
Contact us to discuss how we can assist you.