Many people I see have misconceptions regarding divorce. Often they do not know what is involved, or how divorce relates to financial matters and parenting.
Obtaining a divorce can be a fairly straight forward process. This is generally the case when the application form is completed correctly, the circumstances are unambiguous, and both spouses co-operate.
Unfortunately, things do not always sail along smoothly on the road to divorce. A spouse may oppose the divorce application, the date of separation may be in dispute, or a spouse may avoid service of the documents.
In this article, I have attempted to clarify some common misunderstandings, as well as pin point some occasions where issues may arise. If you find the divorce application process confusing, complexities arise, or the thought of appearing in Court terrifies you, the solicitors at Leach Legal are always here to help.
When Can I Get Divorced?
You can apply for a divorce twelve months after the date of separation. Couples may be separated under the one roof, which may give rise to uncertainty later down the track. The fact that the marriage is over needs to be clearly communicated to help avoid confusion. An Affidavit from a third party may need to be filed to corroborate a separation under the one roof.
Who Can Apply?
You can apply for a divorce on your own, or together with your spouse. If you do a sole application, it needs to be served on your spouse or their solicitor. Service is important, particularly in relation to how it is effected and when. You will also need to satisfy certain criteria demonstrating a connection with Australia.
Will I Need to Go to Court?
If you do not have children under the age of 18 years, you will generally not be required to attend Court.
If you do have children under the age of 18 years, a Court appearance will be required if you have solely made the application. If you have jointly applied for the divorce with your spouse, you will generally not be required to attend Court (even if you have children under the age of 18 years).
Is Divorce Connected to Property & Children?
Yes and no. Although financial and parenting matters are separate to divorce, they are indirectly connected.
The Family Court will usually not grant a Divorce Order unless it is satisfied that proper arrangements have been made for any children under the age of 18 years. An Application for Divorce requires you to provide someinformation in relation to your children to allow the Court to make this assessment.
Although you can only apply for a divorce 12 months after separation, the same rule does not apply to property matters. Couples are able to resolve their financial matters directly after separation if they so choose. It is important to keep in mind that you have only 12 months from the date that a Divorce Order takes effect to commence property or spousal maintenance proceedings in the Family Court. Leave will be required after this time.
TEN FAST FACTS ON DIVORCE
- Divorce in Australia is ‘no fault’. The only ground for divorce is that ‘the marriage has irretrievably broken down’. There also needs to be no reasonable likelihood that you will resume married life.
- You cannot apply for a divorce unless you have been separated for 12 months.
- If you have been married less than two years, you will usually need to attend counselling with your spouse to discuss the possibility of reconciliation before you can apply for a divorce.
- If you are applying for a divorce on your own, you need to serve the application on your spouse at least 28 days before the Court hearing date. If your spouse is outside of Australia, it needs to be served at least 42 days before.
- The filing fee is currently $845.00 (unless you are eligible for a reduced fee).
- If you are unable to serve your spouse with your Application for Divorce after reasonable attempts, you may be able to apply for ‘substituted service’ (service via other means), or to dispense with service altogether.
- If a Court appearance is required, a solicitor can appear on your behalf.
- If you are represented by a solicitor, they can accept service of an Application for Divorce on your behalf.
- A Divorce Order takes effect one month and one day after it is granted (unless the Court orders otherwise).
- Divorce invalidates the terms of an existing Will, unless the Will is made in contemplation of divorce.
If you need assistance with obtaining a divorce, please call Leach Legal on 9486 9733.