It will take at least 4 months to obtain a final Divorce Order (formally known as a Divorce Certificate), longer if there are difficulties in serving your spouse. You shouldn’t plan a remarriage without allowing enough time for the divorce to be finalised.
You can only apply for divorce in Australia after you have been separated for a period of at least twelve months. If you have been separated, but reconciled for 3 months or more, then the 12 months period starts after the reconciliation.
Family law in Australia is no longer fault based. To file an Application you must:
- prove that the marriage is irretrievably broken, that is, that you have been separated for a period of no less than 12 months
- have lived separately for this 12 month period
- have been married for more than 2 years or attended the required counselling with the Family Court
If you have been married less than 2 years and want to apply for a divorce you must:
- Before filing the Application attend mediation with a court approved family and child mediator to discuss the possibility of reconciliation and then file a certificate completed by the counsellor with your Application. You must attend this mediation session with your spouse or file an Affidavit setting out the reasons why counselling cannot take place.
- You may file an application seeking the Court’s permission to proceed within 2 years of the marriage. There are special circumstances in which this may be done. Please speak to a member of Watts McCray family lawyers to get more advice.
To be able to apply for a Divorce, at the date of filing at least one spouse must be:
- an Australian citizen;
- domiciled in Australia; or
- resident in Australia for 12 months.
There are very few grounds to prevent a divorce being granted. If there is a jurisdictional argument as to which country should hear the divorce proceedings, or, if the date of separation is disputed then these issues will need to be determined by the Court prior to the divorce proceedings.
Your spouse must file a Response to your application and then serve the Response on you, or on your lawyer, before the hearing date. If a Response is filed by your spouse, your spouse must attend Court or have legal representation at the hearing. If a Response is filed, the Court might not grant the divorce application at the first hearing.
If you do not know the whereabouts of your spouse, you can apply to the Court for the divorce to go ahead. However, you must show the Court that you have tried to contact your spouse. If this is necessary, it will take longer to get the divorce and will cost a little more.
It is possible to prove separation even if you still live in the same house as long as the three elements of separation are present. The action of separating must involve an open and complete break from the marital relationship and may include:
- the ceasing of sexual activity
- living in separate rooms
- operating separate bank accounts
- not sharing meals
- not providing household services
- not sharing mutual entertainment inside or outside the home
- not representing to relatives, neighbours or friends that the marriage is continuing
If the parties contend that they have separated even though they still live under the one roof they will have to give the court evidence of this.
You can apply for divorce if you were married overseas as long as either you or your former partner:
- are Australian citizens or residents, or
- regard Australia as your permanent home.
You will need a copy of your marriage certificate. If your marriage certificate is not in English, you will need:
- an English translation of the marriage certificate, and
- an affidavit from the translator which:
- states his or her qualifications to translate
- attaches a copy of the marriage certificate
- attaches the translations
- states that the translation is an accurate translation of the marriage certificate
- states that the attached copy of a marriage certificate is a true copy of the marriage certificate translated.
It is illegal to remarry before the divorce becomes final. To do so is an offence (bigamy) and the second marriage is not legal. Your Divorce will not become final until the expiration of one month after the divorce was granted.
Where there are children of the relationship under the age of 18 the court might not grant a divorce unless proper arrangements have been made for their care and welfare and those arrangements have to be explained to the Court. We will advise you about this.
The granting of a divorce does not determine issues of children, maintenance or property. These are separate issues which we may assist you with prior, during or after your divorce is granted.
Please note that you must file an application for maintenance or application for property division within 12 months of your divorce becoming final.
All children that were treated as a family member immediately prior to separation are included as children of the marriage. This includes step children and foster children. The arrangements for all children have to be disclosed.
No, you can make arrangements about property and parenting issues at any stage. If you want to apply to the Court for orders in relation to property, however, you need to do this at the latest within 12 months of your divorce becoming final. If you have just separated from your partner, or even if you are only thinking about separation, you may wish to speak to an experienced family lawyer now to find out more about your rights and obligations in relation to property and parenting matters.
Almost certainly it does, as any gift in a Will to a spouse becomes invalid on divorce. You should seek our advice about a new Will and nomination of a beneficiary for your superannuation and life insurance.
Get in touch with Watts McCray today.
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The Nexus Building
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