Divorce – what you need to know

26-September-2017 Family Law By Simone Green

There are many misconceptions surrounding just what divorce is and the process of obtaining one. In fact, the process of obtaining a Divorce is the most straightforward process involved in the broader Family Law context. The Courts have attempted to make the process as accessible as possible for the average person to deal with their own divorce, however legal representation is advised if your matter is more complicated. Streeterlaw’s Accredited Specialist in Family Law Simone Green explains what you need to know about the process of divorce.

  1. Divorce is only available to legally married people.
    De facto partners do not require a divorce upon separation.
  2. In Australia, divorce is a separate process from property settlement and child custody, unlike some overseas jurisdictions.
  3. There is no requirement for separated spouses to divorce.
  4. You can settle property and custody issues, remain separated and never divorce.
    You cannot remarry without first obtaining a divorce. You cannot be legally married to more than one person. There is a period of 1 month and 1 day following the divorce hearing until the certificate is issued where you cannot legally remarry.
  5. Consent to a divorce is not required. Australia is a ‘no fault divorce’ jurisdiction, therefore the reasons for the separation are irrelevant to the process. You cannot stop a divorce from proceeding provided all criteria is met (see below).
  6. You can file an Application for divorce 12 months and 1 day after separation.
  7. You can count any period of separation living under the same roof towards the 12 month time period (extra evidence is required).
  8. If you have been married for less than 2 years, you will need to obtain a certificate from a counsellor before filing an Application.
  9. The process of obtaining a divorce is simple and efficient.
    Applications may be filed online with the Federal Circuit Court. You will need a copy of your marriage certificate and residency papers if born outside of Australia.
    If you and your spouse agree to make a joint Application, nobody needs to attend the Court hearing, the Order will be made in the absence of the parties and a Certificate of Divorce will be posted out in the mail one month later.
    If you make a sole Application, you need to serve the Application on your spouse and attend Court if there are children under 18.
    The divorce hearings for simple matters are held before a Registrar of the Federal Circuit Court of Australia and provided all of the criteria are satisfied the divorce will be granted at the hearing and will take effect in one month:
    12 months separation
    Service of Application within the Rules
    Proper arrangements (although not final) made for the care of children under 18.
  10. We recommend that you obtain advice from a specialist family lawyer if you have any of the following issues:
    You cannot locate your spouse;
    You cannot serve the Divorce Application on your spouse;
    You have been separated under the same roof (extra evidence is required to prove the length of separation);
    You have been named the Respondent in an Application for Divorce and there are facts in the Application that are incorrect and reasons why you believe the Divorce cannot be granted (you will need to prepare a Response).
  11. Once a Certificate of Divorce has taken effect, you must settle your property or otherwise file an Application for property adjustment within 12 months of that date.
  12. You should make a new last will and testament following a divorce.
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