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What you need to know about getting a Divorce

Sunday, May 05, 2019
People often tell us that they want a “divorce”. This word is often used interchangeably by people who actually want a property settlement, or a parenting arrangement. In fact, the process of divorce is quite different to a property settlement or parenting dispute and is treated differently by the Courts.

A Divorce Order will be granted upon application to the Family Court of Australia by one or both spouses, provided that some requirements have been met. Depending on your circumstance, it may not be necessary for you to go to Court for your Divorce.

In Australia, we have a “no fault” divorce system. The only ground on which a Divorce Order can be granted is when the marriage has “broken down irretrievably”. The Court will accept this if it is satisfied that the spouses have been separated for at least 12 months prior to the date of filing the Application for Divorce. It is therefore prudent to make sure that the separation date is agreed, or it is at least agreed that it was more than a year ago. 

The Court will not make a Divorce Order if there is a likelihood of cohabitation being resumed. If it has been less than 2 years since you were married, or if you have resided in the same home since separation, then you may have to satisfy additional requirements. 

If there are children of the marriage under the age of 18 years, then we recommend that you seek legal advice before filing an Application, as the Court might not make a Divorce Order if they are not satisfied that there are “proper arrangements” in place for the children.

When an Application has been filed by one spouse, there are additional steps that need to be taken to “serve” that Application on the other party. We recommend that you seek legal advice in relation to service requirements, as this can be tricky.

You do not need to have settled property to get divorced. However, once your divorce takes effect (usually one month and one day after your Divorce Order is granted), you have 12 months to properly finalise your property and spousal maintenance matters. If you have not done so within that time, the Courts may not allow you to pursue a property settlement. I advise my clients to delay filing for Divorce until their property/spousal maintenance matters have been finalised.

Divorce can also affect your Will. We recommend having your Will reviewed if you are contemplating Divorce.

We can assist you with your Will, Divorce and all other aspects of family law. Please contact us to speak with one of our solicitors.
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