No one gets married thinking divorce is in their future.
So when couples find themselves facing a divorce, many are unfamiliar with the process. Filing a divorce application is fairly straightforward; however, there are a few steps beforehand to be aware of.
If you’re ready to end your marriage and unsure of the next step, here are answers to five common questions couples have about the divorce process.
When can I apply for a divorce?
Divorce isn’t instant in Australia. If you have been married for more than two years, you must prove you have been separated from your spouse for at least 12 months before applying for a divorce – this means that you’ve lived separately and apart for that 12-month period.
In that time, if you spend three or more months trying to reconcile and fail, you’ll have to start the 12-month separation period from scratch.
What if I was married for less than two years?
Couples married for less than two years must first attend a separation counselling session to see if reconciliation is possible.
If you still want a divorce after completing couples counselling, you must attach the counselling certificate (as to completion of couples counselling) to your divorce application.
When you’ve completed the 12-month separation period, you can submit a divorce application to the Family Court in your state.
If all of the court’s requirements are met, your divorce order will be issued at the hearing of your application for divorce, and the Divorce Oder will come into effect one month and one day later. At that point, you will be free to legally remarry.
Need Help with separation or divorce?
Our experienced Family lawyers are waiting for your call. Contact us if you need help with a divorce or separation.
Complete a short online form, email info.bgm@bgm.legal or call 1300 246 529.
What are the legal grounds for divorce in Australia?
Australia follows a ‘no fault’ divorce policy. That means no blame is assigned to either party for the relationship breakdown. All that’s required is proof that the marriage has “irretrievably broken down”. In most cases, the 12-month separation is enough to prove that no reconciliation is likely.
Applications can be made by spouses jointly, in which case they both inform the Court that they are asking for a divorce to be granted.
But what if you want a divorce and your spouse doesn’t?
In that case, you can pursue an application as the sole applicant.
Should your spouse file a response to the application, you will both be required to attend a court hearing.
Your spouse’s objections will be considered at that hearing, but if you have sufficient proof that the marriage has irretrievably broken down, the Court has the power to grant the divorce even over the objection of that spouse.
What does separation mean?
Under family law, separation refers to a couple for whom the marriage relationship has broken down – the elements of a relationship as husband and wife are no longer present.
Before you can apply for a divorce, this separation must go on for at least 12 months – this period of time demonstrates that the relationship breakdown is irretrievable.
Can I count time spent separated under one roof?
Suppose you and your spouse cannot live in separate residences due to logistical or financial reasons. In that case, the court will accept you are separated if you can prove you are living separately under the same roof.
This can include living in separate rooms and ceasing intimate contact, cooking separate meals and no longer performing domestic chores for each other, operating different bank accounts, and no longer attending social events as a ‘couple’.
The most convincing evidence is third-party corroboration from friends, family or neighbours, so it can be a good idea to inform people close to you about your separation.
Do I have to do the property settlement first?
A property settlement is a separate process from a divorce application. So too, are parenting arrangements and spousal maintenance outcomes.
A Divorce Order does not cover these subjects, and they must be the subject of separate applications to the Court if they cannot be agreed with a spouse. The application for divorce covers only the administrative dissolution of the marriage.
While no rule dictates that property settlements must be done before applying for a divorce (such that it is possible to formally resolve financial matters before a divorce has been granted), for those who leave the resolution of the financial matters until later on, they must bear an important statutory time limit in mind – applications to the Court for property settlement and/or spousal maintenance must be filed with the Court within 12 months after the date of the Divorce Order, otherwise they are ‘out of time’ and cannot be pursued without the Court’s permission.
Property settlements can be complex, so it’s advisable to seek guidance from an experienced family lawyer, to ensure that you are on the right track.
Our Family Lawyers Can Help
BGM Family Lawyers is a family law on the Gold Coast. Contact us if you need help with a divorce or separation.
Complete a short online form, email info.bgm@bgm.legal or call 1300 246 529.
