People often put off getting advice about Divorce, thinking that it is a long and complicated process. To the contrary, applying for a Divorce is usually a simple and straightforward process.
An Application for Divorce is the process of formally ending your marriage. It is important to remember that this process is separate and distinct from sorting out your property settlement and financial affairs, or making arrangements for your children after you separate.
You do not have to wait until you are divorced to negotiate or formalise your property settlement, or to come to an agreement about your children. Property settlement and children’s matters can be negotiated at any time after you separate. However, a Court Application for property settlement must be filed within 12 months from the date of divorce.
To apply for an Application for Divorce, you need to be able to prove that your marriage has irretrievably broken down. To do this, you need to show that you and your former spouse have been separated for a period of at least 12 months. This is the only ground that you need to prove. You do not even need to have resided in separate residences during that 12 month period, but if you have been separated under the same roof for a period of time that makes up all or part of that 12 month period, there is some further information you need to provide the Court.
It is also important to remember that if your marriage was of less than two years duration (i.e. you separated before your second wedding anniversary), you will also need to show the Court that you have participated in counselling through the Courts. This is a requirement of the legislation.
The process itself is surprisingly straightforward. Once you have been separated for 12 months, and have participated in counselling (if you and your spouse had not been married for two years), you can proceed with an Application for Divorce.
The Divorce Application
You can file your Application for Divorce by yourself, or jointly with your former spouse.
The Application is simple to complete in most circumstances and can be found online on the Family Court of Australia website.
Once completed, the Application can be filed with the Court along with the required Court fees and a copy of your Marriage Certificate.
Serving the Divorce Application
Once the Application is filed, the Court will provide you with copies of your Application. If you did not file a joint application (one signed by you and your former spouse) then you need to serve the Application on your former spouse.
There are a number of things to be taken into account when serving the Application on your former spouse, and it is recommended that you obtain independent legal advice about this process, especially if you have concerns that your former spouse may make the process difficult. The Court cannot determine the Application until you provide the Court evidence that your former spouse has been properly served.
The Divorce Hearing
If you and your former spouse filed a joint application, or you do not have children under the age of 18 you can elect not to attend the Hearing of your Application for Divorce. The Court will review your Application in your absence, and in most circumstances will grant the divorce.
If you have filed the Application for Divorce yourself, and/or either you or your former spouse have children under the age of 18, you will need to attend the Hearing. You can attend the Hearing with or without your lawyer. At the Hearing, the Registrar of the Court will review the Application, and ensure, if necessary, that it was served properly on your former spouse. If you and your partner lived separately under the same roof during the 12 month separation period, the Registrar may ask you some questions about those circumstances. The Registrar may also ask some questions to ensure that there are appropriate arrangements in place for the care of any children under the age of 18.
After the expiry of one month and one day following the Hearing, you will receive a copy of the Divorce Order from the Court. This Order formally acknowledges that you are now divorced from your former partner.
Once a Divorce Order is made, it is extremely important to seek legal advice if you have not already finalised your property settlement and financial matters with your former spouse. You only have a period of one year from the date of the Divorce to file proceedings seeking Orders for property settlement.
Contact our experienced Cairns Family Lawyers for advice in relation to Divorce. – or if we can assist in relation to your property settlement or parenting arrangements following separation.