Dealing with Divorce

Ending a relationship is a complex and difficult process for everyone involved. It can also
be an overwhelming and emotional situation to navigate, and that’s before the legal side
of things are taken into account.

In a legal context, the end of a marriage often leaves a number of issues that need to be
resolved to enable both parties to move on with their lives.

Property & Parenting Issues

There are two main issues that usually arise from a separation or divorce:
1. Determining the parenting arrangements; and
2. Dividing the property.

It is a common misconception that when applying for divorce your matrimonial property
and arrangements for your children will also be dealt with. An Application for Divorce refers
to the legal dissolution of a marriage, and is a separate process from finalising the property
or children’s issues.

Once a Divorce Order is granted, both parties have 12 months from the date of the
divorce to initiate property proceedings. If either party wants to initiate property
proceedings after this date, they will need to seek leave from the Court.

What is required to get divorced

You are eligible to apply for a divorce in Australia if you or your former spouse:

• Regard Australia as your home and intend to live in Australia indefinitely; or
• Are an Australian Citizen by birth, descent or by a grant of Australian citizenship;
  or
• Ordinarily live in Australia and have done so for 12 months immediately before filing
  for divorce.

If you satisfy one of the above requirements, the final requirements are:

• You have been separated for at least 12 months; and
• There is no likelihood of resuming the relationship.

What if I was married overseas

If you were married overseas and you fulfil the above requirements, the Court may still
recognise your divorce.

You will need to provide a copy of your marriage certificate. If the marriage certificate is
not in English, you will need to provide a translated copy.
Separated under the one roof

Sometimes, a couple will continue to live under the same roof after separation has
occurred. This can be due to financial difficulties, or so as to not disturb the routine for
any children, or it may just not be possible to move out straight away. It is possible to
live under the one roof and still be considered separated for the purposes of obtaining a
divorce.

You may be considered to be living separately and apart under the same roof if:

• Meals are prepared and eaten separately.
• Finances are kept separate.
• Housework and laundry are completed separately.
• You are known to be separated by friends and family.

You will need to the show the Court that you and your former spouse are permanently
separated and have been living separately while living under the same roof. This is
usually done through an Affidavit from either you, your former spouse, or any relevant
third parties, such as friends or family members.

Should I apply for divorce jointly or solely?

You are able to apply for a divorce either jointly with your former spouse, or solely.
In some cases, it may not be possible to jointly apply for a divorce. In those
circumstances, you do not require the consent or agreement of your former spouse to
apply for a divorce.

If you are applying for divorce solely, you will need to organise for the documents to be
served on your former spouse. This usually must be done by hand, by a person over the
age of 18, who is not one of the parties. There are professional services that your lawyer
will usually organise on your behalf.

Day of the Divorce Hearing

Once the Application for Divorce has been filed and served on the other party, if
required, the next step is the Divorce Hearing.

Attending at Court for the Divorce Hearing is usually required for specific circumstances
only, including:

• Where there is a child of the marriage who is under the age of 18 years;
• If you wish the Court to acknowledge a period of separation under one roof;
• If personal service could not be completed for any reason; or
• If you wish to attend.

You are not legally divorced until the Divorce Order is issued. The Divorce Order will
usually take effect one month and one day from the date of the Divorce Hearing.

Remarrying

Once the Divorce Order has taken effect, you are able to remarry. You should not make
plans to remarry until the Divorce Order is finalised, as this can lead to serious
consequences.

Next steps – After Divorce

The finalisation of the Divorce Order does not resolve the other issues that normally
arise from a separation, including the division of matrimonial assets or property,
parenting arrangements, or child support.

If you or someone you know wants more information or needs help or advice with a
divorce, please contact our Intake team on (03) 8415 5600 or email us at
reception@hartleyslawyers.com.au.

This article is intended to provide general information only and is limited to the Victorian
jurisdiction only. You should obtain professional advice before you undertake any course
of action.

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