The circumstances surrounding divorce can be a complicated process and an emotional experience for all involved.
Here are 4 things you need to know:
- You can’t file an Application until you have been separated from your spouse for 12 months
The only ground for divorce in Australia is that there has been an irretrievable breakdown of the marriage. The Family Law Courts (“Court”) can only find that has occurred if you and your spouse have been living separately and apart for 12 months.
This doesn’t mean you must live in separate houses. You can still meet the requirement if you are separated under the one roof for 12 months. However, in that case the Court will require evidence in the form of an Affidavit that you and your spouse have in fact separated. The Court requires this evidence in order to ensure that parties seeking a divorce are not falsely alleging that they have separated under the one roof (where they have not) in an attempt to obtain a divorce more quickly.
Therefore, if you have separated with your spouse and have continued to reside in the same residence (whether for all or part of the 12 month period), your Affidavit will need to include corroborating evidence to prove that you have separated even though you continued to live under one roof. The Court wants to know what changes have occurred in your lives that mean you are now living separately and apart. Such evidence can include that from the date of separation, you and spouse no longer cooked meals for each other, you slept in different bedrooms, you did separate laundry, you no longer socialised together or you socialised to a lesser extent than when you were together.
- If you have been married for less than 2 years, you must* attend marriage counselling
If you and your spouse have been married for less than two years and you wish to apply for a divorce, you must first attend upon a court-approved family counsellor to consider a reconciliation. The policy behind this requirement is to ensure that parties that are young and less experienced are sure that they want to go through with finalising their marriage by way of divorce. If you go to counselling and there is no prospect of reconciliation, the counsellor will provide you with a certificate stating that you and your spouse have discussed reconciliation however that it was unsuccessful. You will then need to file this certificate with your application for divorce.
However, the Court may allow you to file an application for divorce notwithstanding that you have not attended counselling if it satisfied that there are special circumstances. This may be for example that there is a history of violence in the marriage, that you are unable to locate your spouse or if your spouse refuses to attend counselling. If there are special circumstances, you will need to seek the Court’s permission to file the application for divorce by filing an accompanying affidavit to explain why you did not attend counselling.
- “Proper arrangements” must be made in relation to the children
In order to obtain a divorce order, the Court must be satisfied that there are proper arrangements in place in relation to children. Therefore, where you and your spouse have children under 18 years of age, you must satisfy the Court that there are proper arrangements in place for the children for example, that they have appropriate living arrangements, that they are taken care of financially and advise the Court of the status of their health. Where you have children under the age of 18 years of age, you must attend the divorce hearing, or your solicitor must attend on your behalf.
- After divorce, you have 12 months to bring property proceedings
Obtaining a divorce and seeking a property settlement are two distinct legal processes. Once your divorce is finalised, you must make an application for a property settlement and/or spousal maintenance within the following 12 months. After the 12 month limitation period, you are effectively “out of time”. After that time, the party wanting to apply to the Court for a property settlement or spousal maintenance will require the Court’s permission to do so. Permission may (but will not always) be granted where the Court is satisfied that the applicant or a child of the marriage would suffer hardship if permission was not granted. The Court will also have regard to the reasons for delay and any other relevant matters.
Our Family Law team is able to provide you with comprehensive legal advice in relation to the all legal areas associated with separation and divorce, to assist you and your family to move forward. For any queries, please don’t hesitate to contact us on (03) 9670 5000.
This article was written by Family Lawyer, Stephanie Pickworth.
DISCLAIMER: We accept no responsibility for any action taken after reading this article. It is intended as a guide only and is not a substitute for the expert legal advice you can get from marshalls+dent+wilmoth and other relevant experts.