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Divorce Q & A

1. When can I apply for Divorce?

Once the difficult decision has been made to end your marriage, there are a few things that need to happen before you can apply for a divorce:

  • You must have been separated for at least twelve months. You can live separately under the same roof during this time but there may be some complications upon applying.
  • If you were married for a period of less than two years, you must obtain a counselling certificate from a family counsellor that reconciliation has been considered and is not likely. If you separated because of family violence, then you may be issued with a certificate without having to attend counselling should there be a significant risk to your safety.

2. Do I have to have a reason for the Divorce?
In Australia, we are a ‘no-fault’ system which means it does not matter whether one spouse, or both, have caused the breakdown of marriage. Under the Family Law Act 1975, there is only one reason for divorce, being that the marriage has broken down irretrievably.

3. How do I start the Divorce process?

An application for divorce must be filed in the Federal Circuit Court, along with a copy of your marriage certificate. Depending on your particular circumstances, you may also need to file an affidavit to explain to the Court anything unusual about your application.

Applications can be made jointly (i.e. with your spouse) or by one party. If the application is not made jointly, the documents will need to be served on your spouse by any person over 18. There are very limited grounds for your spouse to object.

The Court will then list a short hearing. If you have made a sole application and there is a child or children of the marriage aged under 18 years, you are required to attend the court hearing. This is to ensure that the children have been considered.

For applications made jointly or solely without there being children aged under 18 years, there is generally no need to attend the hearing.

Your spouse does not have to attend the divorce hearing unless they are contesting your application.

If the Court is satisfied that your application is in order, the divorce will be granted. Your divorce will then take effect one month and one day after the hearing. On that date, the Court will issue a Divorce Order.

4. What are the costs?

On filing the application for divorce, you will need to pay a filing fee to the Court, plus your own legal fees if applicable.

5. What about my property settlement and child arrangements?

A divorce application only deals with the end of the legal marriage relationship. Other aspects of a marriage breakdown, such as property division, children’s arrangements and spousal maintenance, are dealt with in separate applications.

The most important thing to note is that, whilst you do not have to wait until you are divorced before making financial arrangements, once your divorce is finalised an application to the Court for a property division or spousal maintenance must be made within 12 months. If not, you will need the Court’s permission before you can even make an application to the Court to deal with these matters.

We recommend you obtain independent legal advice from a divorce lawyer as soon as possible. While an application for divorce may be relatively straightforward, it is important to consider all other aspects of separation before proceeding.

The end of a relationship is never easy and your situation is unique. Our Divorce Lawyers will respond to your needs and support you through this transition with empathy and care to help you move forward.

Contact us at Anchorage Legal if you have any further questions.

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