Making the very personal decision to divorce can be a difficult one for many people. Not all relationship breakdowns must result in divorce and it is important that you are comfortable with the decision you have reached and understand that the decision is yours to make.
Do I need a Divorce Lawyer?
In Australia, we have a no fault system of Divorce. This means that there is no need to establish fault of either party in order to obtain a Divorce Order. The only thing that you need to establish before you are eligible for a Divorce is that your relationship has broken down irretrievably. The Court in considering this, will look at whether the parties have been separated for 12 months.
Should you decide that divorce is your next option, it is best that you get assistance from an experienced divorce lawyer to help you through the process. At Corney & Lind, our aim is to guide you through this process one step at a time and making available our family tree holistic service for you.
When Can I Apply for a Divorce?
There must be a jurisdictional connection to Australia before an Australian can consider an application for divorce. This means that one or both parties must:
- Be an Australian Citizen; or
- Ordinarily reside in Australia and done so for 12 months prior to filing your divorce application; or
- Consider Australia to be their home indefinitely
The second thing that you need to show for the court will consider your application for divorce is that you marriage has broken down irretrievably. It is not necessary to show that someone is at fault. The only evidence needed is that you have been separated for 12 months.
If you have periods of reconciliation/cohabitation that last longer than 3 months during a 12 month period, time spent apart prior to reconciling is not considered part of your 12 month separation. If you decided after a period of reconciliation that lasts longer than 3 months you still want to divorce the clock will start running from the time you again separate.
If periods of cohabitation last less than 3 months you may be able to join prior periods of separation and periods after cohabitation to form the required 12 months separation.
There are a range of reasons it may not be practical or desirable for a couple to live in separate homes during this period of separation, but this does not have to prevent you from obtaining a divorce. If you regard your marriage to be over, but remain living in the same home it is called a “separation under one roof”.
If you have been separated under one roof and you are seeking a divorce, you will need to file affidavits stating all the facts that prove you have been separated while still living in the same home.
Before a court will grant a divorce you must satisfy the court that reasonable arrangements have been made for any children of the relationship who are under 18 years of age. This includes issues such as:
- Where the children will live
- Whether the children have any specific health conditions and how these will be supported
- Who will be financially responsible for the children
- Child support assessments/arrangements
Finally, if you have been married for less than 2 years at the date you file your application requires that you and your spouse attended counselling and obtain the appropriate certificate from the counsellor to accompany your application.
If you are thinking about applying for a divorce, you should get legal advice first. Call us to make an appointment with one of our family lawyers.
If you would like to read more about the Divorce Process, click here for Part 2 of the Divorce Process.