When you need a divorce lawyer

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In the unfortunate event that your marriage breaks down, the end of the marriage is formalised by way of divorce. Even though you may be separated for a long time, you will remain legally married unless you get a divorce.

This stressful and traumatic time can be made easier with the help of a divorce lawyer. Our family law lawyers include highly skilled divorce lawyers with extensive experience across the spectrum of family matters including divorce, property settlement, parenting orders, child custody lawyer representation, de facto relationship separation, binding financial agreement and child support lawyer.

Learn about the Lawpoint team, read our plethora of positive client reviews and contact us today for advice.

What needs to be shown for a divorce to be granted?

There are eligibility criteria for applying for a divorce in that one of the parties to the marriage:

Is an Australian citizen;
Regards Australia as their home and intends to permanently reside in Australia; or
Ordinarily lives in Australia and has done so for 12 months prior to making the application for divorce.

Often, marriage breakdowns happen because of the fault (real or perceived) of one party such as infidelity. However, since the introduction of the Family Law Act 1975, the cause of the breakdown of the marriage is irrelevant. Fault is not considered by the Court.

The applicant for divorce must prove that the marriage has broken down irretrievably. In order to prove that irretrievable breakdown, it must be shown that the parties have been separated for a period of 12 months and the court must be satisfied that there is no reasonable prospect of the parties reconciling.

Can you be separated but living under one roof?

It is possible to prove that you have been separated for 12 months, even though you and your spouse continued to live under one roof. This is not uncommon, with separated spouses remaining living in the same house for financial reasons or to make joint care of the children more manageable.

If you have remained living separately under one roof, our divorce lawyers can prepare the necessary affidavits of the person making the application and other witnesses to prove that the parties were indeed separated. These affidavits must be filed with the application for divorce.

The Court will consider things such as were the parties sleeping in separate rooms, did they socialise together, did they represent publicly that they continued to be a couple, did they continue to provide support to each other such as cooking and cleaning and will look at other aspects of the relationship to see if the ordinary features of a marriage were maintained during the period of separation.

Special requirements for short marriages

If you have been married for less than 2 years, there are additional conditions that you must satisfy before the Court will grant you a divorce.

The Court will require that you and your spouse attend counselling with a family counsellor to explore reconciliation and the counsellor must issue a certificate that is then filed with your application for divorce.

If you do not do so, you must obtain permission from the Court for divorce. An affidavit will be prepared by one of our divorce lawyers that sets out in detail why you have not attended counselling and what special circumstances exist. This could include matters such as one party having an AVO in place or being in fear for their safety if they attend counselling with the other party.

It is important to obtain legal advice from a divorce lawyer as early as possible so that you receive specialised advice tailored to your individual needs and circumstances.

What about if I was married overseas?

Even if you were married overseas, you can still apply for a divorce in Australia provided you can establish your connection with Australia in the same way as is referred to earlier in this article.

There are however additional steps that will need to be taken by a divorce lawyer to ensure that your divorce application is approved. This includes by providing to the Court a copy of your marriage certificate. Where it is not in English, your divorce lawyer will ensure that an English translation is obtained from an accredited translator and the translation will be filed with the Court together with an affidavit from the person undertaking the translation.

Do you need to attend court?

Whether or not you need to attend court for the divorce hearing depends on your circumstances.

If you have filed a joint application for divorce with your former spouse, then you will not be required to attend Court as long as the Court is satisfied that proper arrangements have been made for the care of the children of the marriage.

Circumstances in which the Court will require you to attend the hearing include:

where you have filed a sole application and there is a child of the marriage aged under 18 years;
your former spouse files a Response to divorce opposing the application.

When does the divorce order take effect?

On the day that your divorce is listed to be heard, a Registrar or Judicial Registrar of the Court will consider your application.

The Court will only grant the divorce if it is satisfied that each of the requirements for a divorce are met. If you have filed a sole application, it is essential that you have filed an Affidavit of Service, proving that the application was served on your former spouse.

If the Court declines to grant the divorce, it will usually set out what further evidence or steps are required to be taken. The divorce hearing will then be adjourned to another date to allow these matters to be addressed by the applicant for the divorce.

If the divorce is granted, a divorce order is made, which becomes final one month and one day later. In some cases, the Court may shorten that time, but these circumstances are rare.

Divorce and property settlements

It is important to note that a party has 12 months from the date of a final divorce order in which to make an application for a property settlement. If an application is made outside this time period, special permission must first be obtained from the Court to proceed with such an application outside this 12 month time limit.

If you’d like more information on this read more from our property settlement lawyers.

Are you in the process of divorce or separation and unsure of what to do or expect? Contact our divorce lawyer Sydney, who will be able to expertly and empathetically guide you through the divorce process and all other related family law disputes.

Frequently Asked Questions

Please remember that this information is not legal advice. It should not replace legal advice. If you require legal advice, please contact Lawpoint.

It wasn't my fault we broke up. Does that help my case?

It can be emotionally devastating for a person if the breakdown of the marriage is caused by the fault of the other person, such as where one person commits an act of infidelity. However, fault is not a factor in whether a divorce is granted by the court.

The court only needs to be satisfied that the marriage has broken down irretrievably. In other words, if the court is satisfied that there is no chance that the parties will reconcile and the parties have been genuinely separated for 12 months, the divorce will be granted.

Fault is generally not something the law considers when determining a property settlement or parenting issues. You will not get more of the asset pool because your spouse cheated on you. However, in some cases, “fault” can be relevant to what orders the court makes. For example, if separation has been caused by domestic violence, that will certainly be a relevant factor in determining what is in the best interests of the children when making parenting orders.

Everything is in my partner’s name. What do I do?

Assets that are acquired during a marriage are considered to be joint marital assets, regardless of whose name the asset is held in. The law gives the court the power to adjust ownership of property to ensure that the party who is not the registered owner of that asset gets a just and equitable share of that asset.

It is not just assets acquired during the marriage which form part of the asset pool. Depending on the length of the relationship, assets owned before the marriage can also be treated as joint marital assets and be subject to a property adjustment in the same way. This includes the superannuation interests.

People are often surprised to learn that assets that are acquired by one party after the date of separation can also form part of the asset pool that is to be split between the parties. This is why it is important for you to finalise a property settlement as quickly as possible after final separation to prevent post separation assets forming part of the pool of assets to be divided between the parties.

I don't have any money or access to our bank accounts. Can I get some money to live on?

Our family lawyers can help you secure short-term support when you’ve been cut off financially. Through an application for spousal maintenance, the court can order your partner to provide you with sufficient funds to cover everyday living expenses.

Even if all bank accounts and assets are solely in your partner’s name, the court has the power to adjust financial arrangements so you’re not left without any means to live on. It’s designed to prevent hardship while you work towards finalising your broader property settlement.

Why choose Lawpoint?

Clear Communication

Expect lawyers who speak in plain English, so you can make informed decisions about the future of yourself and your children.

Care

We aim to make the legal process seamless for families.

Determination

We will not disclose confidential information or make any agreements with your partner or their lawyer unless you have clearly agreed to it first.

Efficiency

We take a 360-degree transparent approach to our services. We are accountable to our clients and always provide costs agreements.  

Integrity

We fight determinedly for all of our clients. No matter is too big or too small. We have an extensive network of like-minded barristers who we can call on when required.