Frequently Asked Questions On Divorce
As experienced divorce lawyers, we often give our best divorce application advice when talking with our clients face-to-face. Recently we were faced with the question: ‘What are your best pieces of advice for going through a divorce?’ and we realised that often lawyers don’t give their clients all of their best divorce advice. We decided to compile a list of our best pieces of advice for your divorce application.
1. When can I apply for a divorce?
For a successful divorce application, you must satisfy the below criteria:
- You must have been validly married (either in Australia or internationally);
- The marriage must have irretrievably broken down; and
- You must have been separated for 12 months in total.
2. What if we are still living in the same house?
If you have been separated under the same roof, you may still be separated for the purposes of applying for divorce. However, it must be clear that you are separated and not simply in an unhappy relationship. If you are unsure, seek legal advice.
3. What if we get back together?
If you and your spouse reconcile for a period of fewer than three months, then that doesn’t impact upon the 12-month separation requirement (although the time you were together cannot be counted towards the 12 months). If you reconcile for 3 months or more, the 12-month separation period will begin again or ‘restart’ at separation.
4. What if my spouse doesn’t consent to the divorce application?
Consent is not required. As long as you fit the criteria to apply, one party may initiate the divorce proceedings.
5. How long does it take?
Once the application has been filed with the Family Court, it can take 6 to 8 weeks for the application to be listed for hearing. If the application is granted on that date, the divorce order will issue and take effect one month and one day after the hearing.
6. I need this done quickly – what can I do?
In certain special circumstances, the one-month and one-day period for the divorce order to come into effect can be shortened, but this is at the Court’s discretion and depends on the facts of your case. If in doubt, seek legal advice.
7. Do I have to wait 12 months to sort out finances?
No, you can begin negotiations to resolve finance and property issues at any time, subject to certain limitation periods in de facto cases.
8. Can I apply for an annulment instead?
The Court may only grant a nullity if one of the following may be satisfied:
- One party was already married at the time this marriage was entered into;
- The marriage was improperly solemnised according to the Marriage Act;
- Consent of one or both parties was lacking (this is a very high threshold);
- One or both parties are not of marriageable age; or
- One or both parties are incapable of providing consent.
The above only apply in very particular circumstances. We recommend you obtain legal advice if you have any queries about whether a legal annulment is available to you.
If you’re going through a divorce and want to know more, please contact our experienced team today.