The first thing you need to know, is that getting a Divorce is not the same as a Property Settlement upon separation. The purpose of applying for Divorce is merely to legally recognise the end of a marriage.
When you are applying for a Divorce, the Court will not address any issues in relation to financial support or the distribution of property. Nor will the Court delve into parenting arrangements unless there are children of the marriage under 18 (in which case the court will want to know that proper arrangements have been made for those children).
The court will not consider reasons as to why the marriage ended. It will not be concerned with who is at ‘fault’. It will only need to be satisfied that the marriage has broken down irretrievably and there is no reasonable likelihood that the parties will reconcile.
Additionally, you will need to prove to the Court that you and your former spouse have been living separately and apart for a minimum of 12 months. Interestingly, you can be living “separately and apart” from your spouse even if you’re both living under the same roof. There are some additional requirements when applying for Divorce in these circumstances, if this sounds like you, we recommend you seek legal advice.
How do I Apply?
You can apply for a Divorce using the Court’s online Application system. There are filing fees involved. Alternatively, you can contact a Lawyer and they can complete the Application for you and any other necessary documentation.
Do I have to go to Court?
The circumstances in which you will not be required to attend Court are as follows:
- There are no children under 18; or
- There are children under 18 but the Application has been made jointly
If there are children of the marriage under 18 and the Application has been made solely (by one party to the marriage) you will be required to attend Court. The same applies to those that wish to oppose a Divorce Application.
How long do I have to be Married before I can Divorce?
If you want to apply for a Divorce within 2 years of the date of your marriage you must either:
- Attend a family counsellor to discuss the possibility of reconciling with your spouse and obtain a counselling certificate; or
- If this is not possible, you will need to seek permission from the Court to apply for Divorce (this involves providing the Court with additional material).
Overseas Marriage/Divorce
If you were married overseas, you can apply for Divorce in Australia if you:
- Intend to live indefinitely in Australia and are an Australian citizen or resident; or
- Live in Australia and have done so for 12 months immediately before filing your Divorce Application.
If you were married overseas and obtained a Divorce overseas, Australia will recognise the Divorce if it satisfied the Divorce requirements of that country have been complied with.
When can I Remarry?
Until your Divorce Order is final, you cannot remarry. If you are planning to remarry, we suggest you do not set the wedding date close to the expected date of finalisation of your Divorce Order in case of any unexpected delay.
This is general advice only. To better understand your rights and responsibilities when applying for a Divorce it is best to seek legal advice. Please feel free to contact us to discuss your individual circumstances.
