Do I Need to Go to Court to Get a Divorce?
In Australian law, the principle of no-fault divorce was established by the Family Law Act 1975 (Cth).When a divorce is being granted by the Court, it is not relevant why the marriage ended. The only thing the Court really wants to know is that there is no likelihood of the couple getting back together and that the marriage has broken down. The power or jurisdiction of dealing with the dissolution of marriage i.e. granting a divorce rests with the Federal Circuit Court of Australia under Part VI of the Family Law Act 1975 (Cth).
It is important to note that when a divorce is granted, it doesn’t determine issues such as the arrangement for children, financial support or property management. Only the end of a marriage is recognised.
According to Family Law, you can apply for a divorce in Australia if you or your partner comply with the following:
- You are a citizen of the country by descent, birth or through granting of Australian citizenship
- Consider Australia as your home and plan to live in the country indefinitely
- Live in Australia or have done so for the last 12 months before you filed for divorce
The Court needs to be satisfied that you and your spouse have spent at least 12 months apart and there is absolutely no likelihood of you getting back together. It is possible for you and your spouse to reside in the same home and still be regarded as separated – your lawyer will be able to explain the requirements according to Family Law. If you have been married for less than a year, the Court may require you to attend family counselling.
Before applying for divorce in Cairns or in any other part of Australia, you can seek legal advice in order to understand your rights and responsibilities. The best way to do so is to hire a lawyer to provide legal advice and assist you in this regard.
You can apply for a divorce online by simply filling out the online forms provided on the Federal Circuit Court’s website. A filing fee has to be paid, but in some cases, such as when you are experiencing financial difficulties or you have government concession cards, you may be eligible for a reduced filing fee.
There are some considerations made by the Court in divorce applications.As mentioned above, the cause of ending the marriage is not relevant and the only grounds are of a marriage breaking down with no chances of reconciliation.If children under the age of 18 are involved, the Court will only grant a divorce when it is satisfied that suitable arrangements have been made for the children. As far as opposing a divorce application is concerned, the chances of doing so are limited if you have been separated for 12 months.
The application can only be opposed if the Court doesn’t have jurisdiction or you haven’t been separated for 12 months as stated in the application. A Response to Divorce has to be filed and a hearing has to be attended. If you do not attend, the Court will take a decision about the divorce application.
Contact us at Cairns Divorce Lawyers on 4052 0700 to find out more.