Divorce is the legal ending of your marriage. To be eligible for a divorce, you need to satisfy the court that your marriage has irretrievably broken. This is proven to the court by admitting evidence that you have been separated from your spouse during 12 months with no possibility of getting back together. Your partner does not need to provide approval that the marriage is over however they need to be aware that you are of the view that the marriage is over. The Australian judicial system does not consider whose fault it is that the marriage has broken down.
Eligibility to apply
To be eligible for a divorce application, besides proving you have been separated for 12 months, you also need to fit in one the following categories:
Be an Australian citizen; or
Live in Australia and considers Australia to be your permanent home; or
You ordinarily live in Australia and has done so for at least 12 months prior to making the application.
Steps in applying
Once an application for divorce is completed, the application must be served upon your spouse. You cannot personally serve the divorce. Our firm usually uses a process server to undertake this task. Once the divorce has been served, we must prove to the court that service has actually occurred by filing an affidavit proving signature and an affidavit of service. If those requirements are satisfied at the hearing, the Court will grant an order for divorce and the divorce will only become final a month thereafter at which time the Court will issue a certificate.
What if I get back with my partner during separation?
You must be separated for at least 12 months to be eligible to a divorce. If you get back with your partner for no more than three months, you do not have to restart the 12 months separation. If you get back with your partner for more than 3 months then the 12 months’ separation period will have to restart. For example, if you have been separated for 5 months and you reconcile with your partner for almost three months and then separated for 7months again, the court will consider the period of 5 months and 7months thereafter towards the 12 months’ separation period.
What are the implications of separating under the same roof?
You can obtain a divorce whilst being separated under the same roof. However, you will need to provide to the court that you have been leading a separate life for at least 12 months. The Court will consider the following factors:
Whether you still have a sexual relationship with each other;
Whether you sleep in the same bed;
Whether you cook separate meals and undertake your own home duties;
Whether you have separate bank accounts and finances; and
Whether friends and family are aware of your separation;
Marriages of less than two years
If you have been married for less than two years and you wish to divorce. Both parties need to attend counselling and file a counselling certificate with the divorce application. There are circumstances where counselling is not appropriate for example in a domestic violent relationship or if you do not where your spouse is.
In the event you attend counselling and your spouse does not, you can still obtain a divorce but if you both do not attend counselling you will need to seek permission from the court to apply for a divorce.
Thinking of remarrying?
Australia is a monogamous society. You cannot remarry until your divorce is final. It is important to allow sufficient time between the divorce is granted and the date of your remarriage to allow for any delay.
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