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Two Common Issues with a Divorce Application and How to Handle Them

By July 24, 2017Family Law

Applying for a divorce can be a tedious process that takes several months to complete , especially if you are faced with some roadblocks along the way. This is why it’s highly recommended that you seek the assistance of an experienced family lawyer, as they will be able to help you navigate the often overwhelming legal process. So what types of issues are most commonly experienced when applying for a divorce and how can you overcome them?

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Proving 12 months’ separation

In Australia, you must be separated for 12 months before any court will grant you a divorce. ‘Separation’ is defined as when you and your partner stop living together in a domestic or marital situation. Your partner does not necessarily need to agree to be separated, but they do need to be made aware that you think the relationship is over.

In some cases, ex-partners may continue living together after they have separated. This can make the process of proving your separation to the courts a little bit more complicated. If this is the case for you, you must supply two affidavits along with your divorce application. Your legal representative can help you through this process, but fundamentally an affidavit is a written statement that you must swear to be true to the courts.

In your affidavit, you will need to provide evidence to prove that a separation occurred under the one roof. You can do this by explaining factors such as a change in sleeping arrangements, separating your finances and no longer participating in shared activities, to name just a few. It should also explain why you chose to continue living in the same house, any living arrangements made for children under the age of 18 during this time and which government agencies you notified of this change in circumstance.  You will also need to obtain an affidavit either from your spouse, or a relative or friend confirming the separation.

Difficulty serving your application on your spouse

In order for a divorce application to be approved and the hearing to go ahead, you must serve your spouse with a stamped copy of your application at least 28 days before the court date (if your spouse is within Australia, or 42 days beforehand if overseas). They must then sign an Acknowledgement of Service (Divorce) and return it to you. However, if you are unsure of how to get in touch with your ex-partner – or if you are not confident that they will return the acknowledgement to you – this may become a difficult and stressful process.

The good news is that there are provisions in place if this does occur. Again, it is always best to ask your trusted legal representative about these issues to ensure that you understand the best way to proceed.  If you know where your spouse lives, but they will not return the Acknowledgement of Service, you may need to get a process server to personally serve the Application for Divorce on your spouse.

Generally speaking though, if you are unable to find your spouse and serve them the documents, you can apply for dispensing of service. This will require you to prove that you have tried to contact them using methods such as searching the telephone book, asking them of their whereabouts, speaking to their family and friends in an attempt to find them or asking for a forwarding address with their last known employer. You can either submit this application with your divorce application, or you can do it at a later date.

If you are going through the divorce process, it’s always best to seek legal advice from experienced family lawyers. Contact Australian Family Lawyers today to speak to our dedicated team of family law specialists.

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