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Divorce – the “when”, the “how” and the “why”

What is Divorce

To many people the word “divorce” conjures a plethora of different meanings. Often we are approached by clients asking for a “divorce” but referring instead to resolving finances after separating (a “property settlement”), parenting arrangements, or both.

In the legal sense divorce is much more simple: it nullifies a marriage. This is an important step in the separation process as it triggers a time line in which parties can bring a claim for a property settlement, and also enables each party to re-marry, should they wish to do so.

Either party (or both parties) can apply for a divorce after 12 months of separation. The point of separation is often a difficult one to pinpoint, however the Court needs to be satisfied that the parties were separated for 12 months. For spouses who continue to live separated under one roof, this means that the Court needs additional information about the living arrangements including:

  • Where each of the parties slept;
  • Where their personal belongings were kept;
  • Whether the parties attended functions together, or otherwise held themselves out to friends, family and the public as a couple or two individuals; and
  • Whether the parties continued to live on a genuine domestic basis.

The additional information is put to the Court in the form of an Affidavit, which tells a story about the living arrangements.

Once satisfied that the parties have been separated for a period of 12 months, the Court must be convinced that the marriage has broken down irretrievably and that there are no real prospects of reconciliation.

In Australia we have a “no fault” divorce system, which means that neither party must prove fault of the other to support a divorce application. Similarly this means that if just one party wishes to become divorced, it will likely occur.

The Court will need details about the relationship, including the date of marriage and proof of the marriage through a Marriage Certificate. If there are children of the relationship, the Court will also be interested in the arrangements for the children, for instance:

  • Their names and ages;
  • Where they live;
  • What the accommodation is like in each parent’s home (for instance, how many bedrooms and bathrooms a home has, whether a child shares a room, etc);
  • Details of the children’s education, including the school they attend and what grade they are in, as well as how they are progressing academically;
  • The health of the children; and
  • Any other relevant information about where the children live.

Filing an Application for Divorce must be done online through the Family Law Courts website, or through the Commonwealth Courts Portal. A filing fee is also payable at the time of making the Application, however in some circumstances parties may be eligible for a reduced fee. For a joint application, both parties would need to be eligible for the reduction to apply.

Once a Divorce Order is made it will become final one month and one day after the Order is made. For instance, if your Divorce Order is made on 10 January, it will become final on 11 February that same year.

If you would like more information on whether you are eligible to apply for a divorce, or assistance with making the application, please contact Meagan Murrell on (02) 9344 2000 or meagan@kydonsegal.com.au.