Filing for divorce is a very personal and often difficult decision 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.
If you are considering applying for a divorce order, this article seeks to explain the eligibility requirements and processes.
How do I obtain a divorce order?
In order to be granted a divorce order, you must first meet the eligibility requirements.
- Jurisdictional Connection
Firstly, there must be a jurisdictional connection to Australia before an Australian court can consider an application for divorce. One or both parties must either be an Australian Citizen; ordinarily reside in Australia and done so for 12 months prior to filing the divorce application; or consider Australia to be their home indefinitely.
- Irretrievable Breakdown of Relationship
Secondly, Australia’s no-fault system of divorce means there is no need to establish fault of either party in order to obtain a Divorce Order. What is necessary is that you establish that your relationship with your partner has broken down irretrievably, which is shown by providing evidence of you and your partner being separated for 12 months.
However, be aware that if you reconcile for longer than three months during the 12-month period, time spent apart prior to reconciling is not considered part of the 12-month separation, and the 12-month clock will reset upon any further separation. If reconciliation lasts less than three months, the clock will pause for your reconciliation period and may be resumed upon further separation.
Also, note that separation and cohabitation are not mutually exclusive – it is possible to still be “separated under one roof” – however you will need to file affidavits that provide evidence which proves your separation whilst living in the same home.
- Reasonable Arrangements for Children
The court must be satisfied that you have made reasonable arrangements pertaining to any children of the relationship under 18 years of age before they will grant a Divorce order. Particular arrangements that will need to be outlined in your divorce application will include:
- Where the child(ren) will be living;
- The child(ren)’s care arrangements;
- Details of their schooling (including grade and progress, before and after school care etc);
- Care for their current health and any special needs;
- Details of the child(ren)’s contact with your spouse – if there is to be no contact, why?
- While this is not the time to settle financial disputes, you will also be required to indicate what financial support will be provided by the parent with whom the child(ren) are not living for their care. If no financial support is to be provided, there must be an explanation as to why.
If you and your partner disagree on what arrangements should be made, the dispute will need to be rectified separately by way of either an Initiating Application or Consent Orders.
The Divorce Process
If you have made up your mind about applying for divorce and begin the divorce process, you will need to file an Application for Divorce with supporting material in the Federal Circuit Court of Australia – attaching a photocopy of your marriage certificate as proof of marriage – and pay the filing fee. If your marriage certificate is not in English, you must have it translated and file an affidavit for the translator.
Upon filing, you will be provided a Court date for the hearing of your Divorce Application. Attendance at court will not be required if you do not have children under 18 years of age.
Applications may be filed solely or jointly, depending on whether your partner consents to the divorce. If filing a solo application, you will need to arrange to have a copy of the Application served on your spouse to notify them of the Application and hearing date.
Once your Divorce Application has been heard, you must wait one month and one day before your Divorce is final and you are able to remarry.
Should you decide to apply for divorce, it is best that you get assistance from an experienced divorce lawyer to help you through the divorce process. At Corney & Lind Lawyers, our aim is to guide you through this process one step at a time and make available our family tree holistic service to you. Contact our friendly family law team today on (07) 3252 0011 or email email@example.com to see how we can best serve you.