What You Need To Know About Divorce1-August-2023 Family Law By Simone Green
People are often confused regarding the process of separation, divorce and property settlement. Following the breakdown of a relationship, people commonly say ‘I’m going through a divorce’ or ‘we are getting a divorce’ as those terms are socially understood, but there is so much more to family law, than the divorce itself. Accredited Specialist in Family Law Simone Green explains what you need to know about divorce, the process of divorce and debunks some popular myths about parting ways.
What is Divorce?
Put simply, a divorce dissolves a legal marriage.
In most cases, this is the easy part. Applications are made online by creating an account with the Commonwealth Courts Portal and the process allows applications to be made without the assistance of lawyers (although you may seek legal advice and assistance if your situation is more complex).
What do I need to obtain a divorce?
You will need:
- To have been validly married in a recognised jurisdiction.
- To have been separated for more than 12 months and 1 day before filing the Application (legal requirement);
- A copy of your marriage certificate (and if in a language other than English an English translation together with an affidavit from a certified translator)
- A copy of any Australian citizenship or permanent residency document if applicable for those born overseas (to prove jurisdiction of the Court).
- A counselling certificate if the marriage lasted less than 2 years.
- An address for service of the other spouse (you will need to show evidence of service
at the hearing).
Who can make an Application?
What you need to know about divorce is that the application for Divorce may be made jointly by consent with your spouse OR by either party as a sole Applicant.
A joint Application for Divorce may be heard in the absence of the parties, so no court appearance is necessary, even if there are children under the age of 18 years.
If making a sole Application for Divorce, you will need to arrange for service of the Application on your spouse and file an Acknowledgement of Service and an Affidavit of Service to prove to the Court that the Respondent has been provided with notice of the Application. A sole Application for Divorce will require a Court attendance if:
- There are children under the age of 18 years; and/or
- The Respondent has filed a Response to the Divorce challenging the facts set out within the Application.
At the divorce hearing, which is held electronically before a Registrar, the Court will make a Divorce Order if they are satisfied that:
- The marriage has irretrievably broken down (sole ground for Divorce in Australia). a. Australia is a ‘no fault’ jurisdiction. If there is no challenge to the separation date stated in the Application (over 12 months from the filing date), this ground will be proved.
- The Court has jurisdiction to make the Order.
- That there have been proper arrangements made for the care and control of any children under the age of 18 years.
Do I need to get a divorce?
If neither spouse wishes to formalise the separation by obtaining a divorce, you can remain legally married but separated.
If one spouse wishes to divorce however, the divorce will proceed provided that the above factors have been satisfied in the Application. Consent is not necessary to a Divorce Application.
What you need to know about divorce is that you MUST however obtain a divorce if you wish to remarry.
Do I need to get a Divorce before I can get a property/financial settlement?
No. A property settlement can be achieved and formalised via an Application for Consent Orders at any time following separation, you do not need to wait 12 months.
Time Limit for applying for Financial Orders
The only way that a Divorce Order affects property settlement is that if you and your spouse are unable to reach an agreement regarding financial issues then you MUST file an Application with the Court seeking property orders prior to the 12-month anniversary of the Divorce Order being made.
If no Divorce order has been made; there is no time limit in applying to the Court for financial orders.
If you have further questions regarding the Divorce process or property settlement, we invite you to speak with one of our Accredited Specialist team and let us help you resolve your dispute on 1300 293 957. Alternatively, leave us a message on our Facebook Page
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