Applying For A Divorce
Have you separated from your partner recently?
Have you finalised your property and parenting matters with your ex-partner and now you’re looking to re-partner?
It may be time to arrange your divorce.
If a married couple has separated, they will at some point have to turn their minds to filing for divorce. If parties do not obtain a divorce and continue to be married after separation, then they continue to have the rights and obligations of a married couple, which has significant importance to financial and succession planning.
In addition, a married person must by law in Australia obtain a divorce if they wish to remarry. Overseas marriages are generally recognised as valid in Australia. Parties married overseas will have to apply for a divorce in Australia to dissolve their overseas union.
Filing a divorce application, is a totally separate process to obtaining a financial settlement. Many people do not realise that divorce and financial settlement are separate.
In simple terms:
• A Divorce is the process of obtaining a dissolution of the marriage, whereas
• A Financial Settlement is the process of obtaining a settlement of the parties’ assets, liabilities and financial resources.
Usually parties have no difficulty obtaining a divorce but frequently the parties may not be able to agree the financial settlement. In nearly all cases, obtaining a divorce is a mere formality.
Either party may apply for a divorce when the marriage is irretrievably broken down. The parties must have separated and have been living separately and apart for a continuous period of 12 months, immediately before filing a divorce application. There must be no reasonable possibility that cohabitation will resume. In summary, parties can obtain a divorce either jointly or separately, if they have been separated for 12 months. In contrast, to obtain a financial settlement, the parties do not have to wait. In fact, it is recommended that the parties do not delay trying to obtain a financial settlement.
An Application for Divorce can be made by one or both of the parties to a marriage.
An Application for Divorce is made on the ground that the marriage has ‘broken down irretrievably’, which is established by satisfying the Court that the parties have separated and have been living separately and apart for a period of at least 12 months. In some circumstances, parties may be ‘separated’ even though they continue to reside under the same roof, which does make the Application process slightly trickier, although not impossible.
An Application for Divorce can be made:
• After 2 years of marriage;
• Within the first 2 years of the marriage – but only if the parties have obtained a signed certificate from a family counsellor or other specified person which states that the parties have considered a reconciliation. This requirement may be waived in special circumstances.
So, what is the process?
Firstly, we need to know if you are applying jointly, or if you are applying singularly. In the event the Application is a joint application, you will not only save yourself some expense in having the Application ‘served’ upon your former partner, but you also do not have to attend the Hearing of the Divorce Application (unless there are children under the age of 18).
In the event your Application is a sole Application, you will need to attend to serving the Application upon your former partner, and you may also need to attend Court on the day the Application is heard.
Divorce Applications are simple and relatively quick – a date is set by the Court approximately six to eight weeks after the Application is filed, and upon that date the Court will decree that the parties will be considered legally divorced one month and one day later.
Important Information to Be Aware Of
If the parties do not resolve their financial settlement promptly after separation, it is important to observe that, if the parties have obtained a divorce, then a strict time limit applies, and the parties have 12 months left to resolve their financial settlement. If there is any risk that this time limit has expired, or even if the time limit has expired, then parties should immediately obtain legal advice form an experienced family lawyer. Allowing this time limit to expire is likely to deprive the parties’ rights to apply to the Family Courts for a financial settlement.
Fault is not a relevant factor in the current law of divorce in Australia and the courts are primarily concerned with the fact that the parties have now separated. The reasons for the separation are irrelevant in divorce proceedings. For example, it is immaterial that there has been adultery or that the separation is not mutual.
Many people still ask whether ‘fault’ is a relevant, because historically parties used to have to establish grounds to obtain a divorce. In Australia, the law changed in 1975. There are many countries that still require the parties to establish valid grounds to obtain a divorce. That is not the law in in Australia.
The exact meaning of separation and living separately and apart is not clearly defined in the Act, except to say that it is irrelevant that cohabitation was ended by the conduct of one party or that the party still lives in the same house and provides some household services to each other. Therefore, separation does not mean physical separation, just simply the breakdown of the matrimonial relationship.
Because there is no specific definition of separation in the Act, many clients are still unclear on how to separate. For there to be separation the 3 elements of separation must be established: intention, action and communication. A party must have an intention to sever or not to resume the marital relationship and act on that intention. In addition, that intention should have been communicated to the other party.
Problems some time arise calculating the 12-month period, when parties resume cohabitation or reconcile for short periods. Parties should consult an experienced family lawyer to ascertain whether any periods of resumption of cohabitation will change the actual date of separation. This can be significant issue if relationships are on and off for a few years.
A divorce order once made under the Act usually takes effect one month after it has been made in a Court. The additional month allows the other party to appeal the decision to grant a divorce, a right which is rarely exercised because the grounds of appeal are limited.
The Family Courts will not permit a divorce order to take effect until satisfied that proper arrangements in all the circumstance have been made for the care, welfare and development of any children less than 18 years of age.
If the court has reasonable doubts about the proper arrangements for the care, welfare and development of the children, then it can adjourn proceedings and seek a family consultant to prepare a report on those arrangements. It is irrelevant whether the child is adopted, ex-nuptial, or a child of the marriage. It is only important that the child was treated by the parties as a child of their family.
If parties have been married for a period of less than 2 years, then to obtain a divorce they must generally provide evidence of counselling. This requirement was inserted to attempt to protect the sanctity of marriage. It means, that unless parties engage in counselling in an attempt to resolve their differences, they will generally need to wait a period of 2 years before they can apply for divorce.
At ABA Lawyers, we can assist you to complete the forms necessary to have your divorce granted, and you will probably need legal assistance to obtain a divorce when:
• You have separated under the same roof for a period
• You do not know how to contact the other party
• The parties have reconciled for a short period after separation
• You do not know how to satisfy the usual service requirements or
• There is no record of your marriage or you are unclear whether your marriage is valid.