When you need a divorce lawyer
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 solicitors include highly skilled divorce lawyers with extensive experience across the spectrum of family matters including divorce, property settlement, parenting orders, de facto relationships, binding financial agreements and child support.
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.
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