Legal Aspects of Separation and Divorce

Under the Family Law Act there is only one ground for divorce, that being that the marriage has broken down beyond repair. This is established by separation of no less than 12 months. If there was a brief reconciliation (of no more than three months) then the Court can calculate the period of separation before and after reconciliation as one continuous period.

If you are looking for a divorce lawyer in Sydney, or for further information in relation to a divorce, please do not hesitate in contacting any member of our Family Law Team.

I have a question about:

  • Divorce

    A divorce is a court order which ends a marriage.

    A divorce order will not finalise parenting arrangements, property or spousal support.

    A divorce will however impose a time limit in applying to the court for property and spousal support orders.

  • Does it make any difference who applies for the divorce and how do you go about making an application for divorce?

    To formally end your marriage, you need to apply for a divorce. You can apply for a divorce on your own or you can make a joint application with your spouse. When you apply for a divorce you need to show that:

    • you were married (a photocopy of your Marriage Certificate is required);
    • you separated at least 12 months ago; and there is no likelihood of you and your spouse reconciling. The Court can consider your application for divorce if either you or your spouse is ordinarily resident in Australia, or is an Australian citizen or regards Australia as their permanent home.

  • What if there are children under the age of 18 involved?

    If you and your spouse have a child or children under the age of 18 years, or if there are children under the age of 18 who were ordinarily members of your household, then your application for divorce must include information about the arrangements for the care, welfare and development of these children. The Court must either declare that it is satisfied that proper arrangements have been made for the children, or alternatively that there are reasons why the divorce should be granted even though the Court is not satisfied that proper arrangements have been made. In some cases, the Court will delay a divorce until problems relating to the care of the children are rectified.

  • Divorce orders

    To get divorced you need to satisfy the court that you meet the criteria under the Family Law Act 1975.

    An Application for Divorce to commence divorce proceedings is filed in the Federal Circuit Court of Australia.

    It can be filed in the court once you have been separated for at least a 12 month’s continuous period beforehand.

    Divorce proceedings can be commenced in Australia if, at the time the Application for Divorce is filed, either spouse has Australian citizenship or lives in Australia and has ordinarily been a resident in Australia for the past year.

    If there are family law proceedings pending in another country, sometimes the Federal Circuit Court of Australia will decline to hear the Divorce proceedings if Australia would be the inappropriate jurisdiction to hear it.

  • Information required by the Court to make a divorce order

    The Family Law Act is on a no fault basis. Instead the court must be satisfied that the couple have been separated a full 12 month period (at least) prior to the divorce order being filed in court.

  • Divorce in Australia if the marriage took place overseas

    Generally yes as Australia can recognise foreign marriages.

    In the case of a polygamous marriage it will recognise marriage to the first spouse only.

  • Separation

    Many spouses are unsure what they need to do to show that they have legally separated.

    There is not a specific legal process but separation occurs from the actions or the conduct of one or both spouses, such as informing their spouse they no longer wish to continue with the marriage and acting on that intention.

    Typically one spouse party may move out, they cease sexual relations, family and friends know they are separated or, if one of them is unable to move out of the marital home, they sleep separately and apart under the one roof and again their family and friends know that their marriage is over and they are separated.

    Separation means that the marital relationship has broken down and come to an end.

  • Moving out of the matrimonial home, I can’t afford it!

    This is not uncommon. This is why it may be prudent to finalise the property settlement first.

    If there is a period of separation under the one roof then some additional steps are required in applying for a divorce.

    One spouse party will need to file an Affidavit detailing separation under the one roof and a witness Affidavit is also required to be filed to show that the separation was a genuine one.

  • Separation and Reconciliation

    Sometimes couples try and reconcile their marriage.

    Provided that they have cohabited again as man and wife for less than 3 months and on one occasion, then the 12 months period of separation can include the time spent separately and apart prior to the trial cohabitation and subsequent to the resumption of living separately and apart instead of having to commence the continuous 12 month period of separation afresh.

  • Applying for a Divorce

    You can apply on your own or with your spouse.

    Divorces can be amicable and both spouses can apply jointly for same. If a divorce application is a joint application then:-

    • If the parties have children together who are under 18 years of age they don’t need to attend Court for their divorce hearing; and
    • They don’t need to serve the Divorce application on the other or file any Affidavit of Service in the Federal Circuit Court of Australia.

    Instead, their Divorce case will be heard in their absence and they will be notified whether the Divorce Order has been made by the Court. Each spouse can of course attend if they wish to.

    If the Divorce is not a joint application then one spouse files the application and needs to serve that filed application on the other and provide the Court with documents acknowledging the service or, if served by the process server, an Affidavit of Service.

    It is important that the Court has a legal document evidencing that the other spouse was made aware of the divorce hearing and served with a copy of the filed Divorce application.

    The spouse party who was served with the Divorce application should check that the information is correct and, if not, can file a Response to Divorce. If they file a Response to Divorce they need to attend the Divorce proceeding at the date and time allocated.

  • Children, Parenting Orders and Divorce Orders

    The Court has the discretion not to grant a Divorce if the care arrangements for children under 18 years of age and child support arrangements are unsatisfactory. You do not need to have parenting orders or a parenting plan in place.

    Instead you need to complete the parenting and child support questions in the application. Sometimes couples are finalising their parenting agreements or having to litigate it – if so include that detail in the application and state what the current arrangement is.

    If you are the sole applicant the judge might ask you about the arrangements if he/she has further questions based on the information provided.

  • Re-marriage

    Not immediately unless the court has dispensed with the one day and one month cooling off period.

    Once the Divorce Order is made it is legally effective one day and one month after it was ordered, which is in effect a cooling off period. Once the cooling off period has ended, the parties are legally divorced and free to remarry should they wish to.

  • After the Divorce

    Once a divorce order is in effect it is prudent to remember that it now brings into play the 12 month time limit to finalise a property settlement.

    After the 12 month time limit lapses if the couple have been unable to agree on their property settlement and need to commence Court proceedings, they need the Court’s leave (or permission) to do so out of time. It is sensible to negotiate a property settlement and ideally finalise the property settlement and spousal support prior to a Divorce Order being made or during the 12 month time limit.

    Once a Divorce Order is made it is also important to check your Will and obtain advice as to whether you should have a new Will prepared and change the beneficiary for your superannuation.

    The filing fee for a Divorce application is on the Federal Circuit Court website and may vary on around 1 July each year.

  • The paperwork

    You can retain a lawyer to act for you and some couples prefer to do this.

    Legal fees in acting for Divorce matters vary depending on whether additional documents need to be prepared such as Affidavits, certification of citizenship certificates/passports as may be required or whether a Court appearance is necessary.

    If you would like to talk about the process for divorce or require assistance please speak with a member of our family law team.

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