A Guide to Divorce
Can I get a divorce?
To be eligible for a divorce, your marriage must have irretrievably broken down. The following needs to be satisfied:
- You and your spouse have been separated for a continuous period of at least 12 months; and
- There is no likelihood of a reconciliation.
You also must satisfy one the following:
- Be an Australian citizen;
- Live in Australia and regard it as your permanent home; or
- Ordinarily live in Australia and have done so for at least 12 months before the divorce application.
It does not matter which party is at fault for the marriage breaking down or whether the marriage was brought to an end by the actions of one party. The only criteria that needs to be satisfied is that the marriage has irretrievably broken down.
If you and your spouse have been married for less than 2 years, there is an additional requirement before you are eligible to apply for a divorce. In this circumstance, you and your spouse must attend marriage counselling, discuss the possibility of reconciling and obtain a certificate to provide to the Court with your divorce application. The Court may grant leave for you to apply for a divorce without the certificate if special circumstances exist, for example if many years have passed since separation or you have been a victim of domestic violence.
Your spouse does not have to agree to the separation, although you must tell them that you consider the marriage over.
You can remarry once a divorce is final. The divorce becomes final one month after the hearing, which is when the court issues a divorce certificate.
Can we live separately ‘under the one roof’?
Yes, you can live in the same home but still be separated. If you and your spouse have lived in the same home for any part of the required separation period, you will need to provide additional information to the Court to explain the nature of your separation.
In this situation you must prepare and file an affidavit which details the circumstances of the marriage to prove that you have separated. It must also detail why you continued to live in the same home after separation.
The court will consider many factors to determine whether you are separated ‘under the one roof’, some of which include:
- Whether you and your spouse still sleep in the same room.
- Whether you and your spouse engage in sexual activity.
- Whether you and your spouse share meals, domestic duties and money.
- Whether your family and friends think of you as separated.
If you and your spouse first lived together in the same home after separation and then one party moved out for longer than 12 months, then you would not need to provide any additional information to the Court as the 12-month separation period would be satisfied.
What happens if we get back together and then separate again?
You can reconcile once for up to 3 months without restarting the 12-month separation period required for a divorce. For example, if you are separated for 4 months and then reconcile for 3 months and separate again, you will only need to wait another 8 months before you have satisfied the required 12-month separation period. The reason for any reconciliation or resumption of cohabitation is irrelevant.
However, if you reconcile for more than 3 months, the separation period stops and will restart again upon separating again.
Proper arrangements for the children
If there are children of the marriage that are under 18 years of age, the Court will not grant a divorce unless they are satisfied that proper arrangements have been made for the care, welfare and development of the children. You will need to include on your divorce application, details about where the children go to school, which parent they will live with, when they will communicate and spend time with the other parent etc.
Procedure for applying for a divorce
If you and your spouse agree to file for divorce together, you can make a joint application. In this situation, you will not need to serve the application on the other party and you will not need to attend Court.
If you are making a sole application for a divorce, once you have filed the application, you will need to serve a sealed copy of the application and an information brochure on your spouse. You must serve your spouse at least 28 days before the hearing if your spouse is in Australia and at least 42 days before the hearing if your spouse is overseas. You are not allowed to give the documents to your spouse yourself. You can post it to them at their last known address or arrange for a process server to serve the documents on them. The process server will then provide you with an affidavit confirming they served your spouse and you have proof to provide to the Court. If there are children of the marriage under 18 years of age, you (or your lawyer) must attend the Court hearing.
There is a filing fee which needs to be paid when you file the divorce application. If you hold a health care card, pensioner concession card or seniors card, you are entitled to apply for a reduction in the standard filing fee.
Make sure you keep the above information in mind when thinking about divorce and remember that a divorce is the dissolution of your marriage and is separate to dividing the property and working out parenting arrangements for the children.
Please note the above is intended to be commentary and general information only. Commentary and general information should not be relied upon or substituted as legal advice. Formal legal advice should always be obtained. If you would like to get legal advice on your specific situation then please contact our office.
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