“I want a divorce” – What next?
One of the hardest choices a person may have to make in life, is separating from their spouse. Even harder is the decision to apply for a divorce, ending the marriage and accepting that it has broken down irretrievably. We understand that divorce is more than a legal process, but a difficult and important life event, and we are able to step you through the process.
Considerations before Applying for a Divorce
In Australia, there are certain criteria that must be met for you to apply for a divorce in Australia.
Firstly, either you or your spouse regard Australia as your home, and intend to live in Australia indefinitely.
Secondly, either you or your spouse are Australian citizens by birth, descent or through obtaining Australian Citizenship.
Thirdly, you ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
To apply for a divorce in Australia, you have to have been separated from your spouse for at least 12 months.
Separation is different for every couple, and the Court understands that issues with finances and children can mean that you and your spouse are still living together despite your marital relationship breaking down. When there is a separation in the marital relationship, but you and your spouse still occupy the same house, it is called Separation under the Same Roof. When applying for a Divorce you and/or your spouse will need to provide evidence to the Court that demonstrates how your relationship has changed. This is required to be done in an Affidavit and may include things such as sleeping in separate beds, evidence of separate finances and separate living.
The Court also understands and encourages reconciliation between you and your spouse, even if you do separate once again. The Court allows a maximum of 3 months reconciliation with your spouse without affecting the 12 month separation period. Those 3 months, or any reconciliation time less than that, are treated like a pause in the separation period, and the separation time continues from the same point it was at the time of reconciliation.
Example: if you and your spouse have been separated for 6 months, then reconcile for one month before separating again. You will only need to complete the remaining 6 months of separation before applying for a divorce. A total of 13 months.
However if you and your spouse reconcile for more than 3 months, then the 12 month separation period will start again.
You will need a copy of your Marriage Certificate to start your Application for Divorce. If you were married overseas in a recognised ceremony, and your Marriage Certificate is not in English, you will need to have the certificate translated, and have an accredited translator complete an Affidavit. If you do not have your certificate we can help you apply for it through the Births, Deaths and Marriages registry.
Length of Marriage
There is an additional requirement if the length of your marriage (calculated from the date of marriage to the date of your Application for Divorce) is less than two years. You and your spouse will need to attend upon a counsellor to discuss the possibility of reconciling with one another.
When satisfied, the Counsellor can then complete a counselling certificate for you which is to be filed with your Application.
If you do not attend counselling with your spouse, you will need to apply to the Court for permission to make the application for divorce. This is done through an Affidavit of the circumstance preventing you, or your spouse from attending counselling.
Children of the Marriage
If you and your spouse have children under 18 years of age, the Court cannot grant a divorce if they are not satisfied that proper arrangements for your children have been made.
Considerations including but not limited to:-
- Who are the children living with?
- Do they spend time with the other parent? If they do, how often?
- How much does each party provide to the children for financial support?
- The health and education of your children; and
- If there are plans to change arrangements for the children in future.
- We have solicitors who are able to assist you in making arrangements for the children and negotiating with your spouse.
Property of the Marriage
You’ve gone through all the procedures and considerations, and realised that you still have not worked out with your spouse how your assets are to be divided. Who is keeping the house? Who gets what bank accounts?
A Divorce will not resolve a dispute about how the property is divided, BUT it is important because it sets a very important time limitation. You have ONE YEAR to issue proceedings into Court to resolve your property issues from the date of your final order of Divorce.
Please note though that you can begin property negotaitions at any time after separation, even if you have not filed for a divorce.
We have solicitors who are able to assist you in dividing the matrimonial property and negotiating with your spouse.
Application and Service
So, you’ve gone through all the steps, brought together all the relevant documents, and considered all the important elements. Now you have to apply to the Court.
A divorce can be applied for by one spouse, or jointly by both spouses. If you are applying for a divorce solely, you need to arrange for service on your spouse. If you do not know where your spouse is, this can be an issue.
Once you have filed your Application, you will receive a date for your Court Hearing. Your spouse needs to be served at least 28 days before this Court Hearing for your Divorce if they reside in Australia, if they are overseas they need to be served at least 42 days prior.
Your spouse can be served in person or by post. If you are serving by post, you are relying on your spouse, or their legal representative signing an ‘Acknowledgment of Service’ and returning the same to you. If you do not believe this will occur, you should arrange for service in person by a professional process server. This server will then complete an Affidavit of Service.
Response to Divorce
An application for Divorce can be opposed by the other spouse for two reasons:
First, they claim that there has not been 12 months separation as required, or second, the Court does not have the jurisdiction to hear the Application.
The opposing spouse can then file a Response to Divorce.
Responses can also be used in situations, where you or your spouse disagree about other pertinent facts such as date of birth, date of separation or arrangements for the children. A Response does not necessarily mean the other party is disputing the divorce itself.
Finally, once everything is through, you may have to front up to Court depending on the circumstances of your application. The Judge will then look at the above factors, and if they are satisfied they will grant the application. The final divorce order will take effect at the expiration of one month after the date of the Court Hearing if granted.
What we can do
After reading this blog you must be thinking, “this process seems confusing, time consuming and requires a lot of detail”, and that’s where Hartley’s Lawyers come in. We can provide legal assistance to you from beginning to end of your divorce proceedings, and assist you with all other matters such as children and property, conveyancing and the drafting of a Last Will and Testament which are important things to consider following any separation.
If you would like to speak to Stephen directly relating to this matter, or any other issue, please click here to send him a message.