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What do I need to know about applying for a divorce?

By March 19, 2018Family Law

Whether you are considering separating, going through the motions or have recently separated, getting a divorce will be something that needs to be considered at some stage after separation if you are married.

We are often asked how and when can I apply for divorce? What do I need to show and what do I need to know? With almost one in three marriages ending in divorce, the unfortunate reality is that you are not alone.

You can apply to the Court for a divorce if the marriage has irretrievably broken down, which is established if:

  1. You have separated from your spouse for a period of at least 12 months; and
  2. You have lived separately and apart from your spouse during this time.

Australia has what is commonly referred to as a ‘no fault’ jurisdiction – meaning the reasons for the separation aren’t important or considered.

It is possible for the 12 months period of separation to start while you are still living under the same roof. However, you will need to show the Court that you lived in separate rooms and led separate lives during that time. The evidence required is an Affidavit (a sworn statement) from you to that effect and an Affidavit from a corroborating witness who can verify this, such as a neighbour, family member or friend.

You can apply either by yourself or jointly with your spouse for a divorce. You will need to prepare an Application for Divorce which we can assist you with for a fixed-fee. If you apply solely, you will need to arrange to serve a copy of the application on your spouse and we can assist with this too.

Once you apply, you will be given a hearing date on which date a Registrar of the Court will decide whether to grant the divorce or not. You won’t need to attend this hearing unless you have children under the age of 18 and you are applying by yourself. If you have children of the marriage under the age of 18, you need to attend Court and show that appropriate arrangements have been made for their care in the Divorce Application.

Once the Divorce Order is made, your divorce will take effect after 1 month and 1 day. You will then have a time limit of 12 months to file any applications for property and spousal maintenance proceedings. At that stage you should also consider updating your will if you have one, as any reference to husband and wife will no longer apply and the Divorce Order can made your will void.

If you or any of your family or friends are considering separating or going through a separation, it is important to get advice early. Our family lawyers are accredited specialists and can provide expert and tailored advice relevant to your situation in order to guide you through the post separation hurdles. If you have any questions or would like some guidance, please contact us as we would be happy to assist you.

Jeremy Ball

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