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25 July 2017 Divorce - FAQs

By Monique Robb, Senior Associate

Am i eligible to apply for divorce in australia?

If you want to apply for a divorce in Australia either you or your spouse need to have some connection with Australia. Usually this means that at least one of you:

  • regards Australia as your home and intends to live here indefinitely; or

  • is an Australian citizen; or

  • has lived in Australia for the 12 months immediately before filing for divorce.

When can I apply for a divorce?

You can apply for a divorce once you have been separated from your husband/wife for a period of at least 12 months.   There is no ability for the Court to grant a divorce if you have not been separated for at least 12 months.

What is separation?

Separation occurs when one party forms an intention that the marriage is over and communicates that intention to the other party – you must let the other party know that you regard the marriage is over, but do not require their agreement.  In certain circumstances separation can take place whilst you are both still living under the one roof. 
If you continue to reside under one roof, you and a witness will need to provide an affidavit (a sworn statement of evidence), about your separation.  Generally, this affidavit will set out:

  • Changes in sleeping arrangements – i.e. separate bedrooms;

  • Public indicators of separation – advising family and friends, change in social media status, ceasing to socialise together;

  • Ceasing to do home duties for each other – such as doing own laundry, eating/cooking separately, caring for the children separately;

  • Separation of finances; and

  • Providing reasons as to why you remained under one roof – in Sydney, the costs of one party moving out are often a contributing factor.

What are the grounds for divorce?

There is only one ground for divorce, which is that the marriage has broken down irretrievably, as evidence by parties being separated for 12 months.

How do I file for Divorce?

You need to complete an Application for Divorce and lodge it at the Federal Circuit Court of Australia.  The divorce has a filing fee payable directly to the court.  You then need to serve a copy of the Application for Divorce on your husband/wife.

Whilst the Family Law Courts website has a very helpful "do it yourself" divorce kit, it may be worthwhile retaining a lawyer to act on your behalf in connection with the divorce proceedings as your divorce can have consequences for your property and children's proceedings.

Can I oppose an Application for Divorce?

Yes. If you and your partner have not been separated for 12 months, or if proper arrangements have not been made for your children, you may be able to oppose the Application for Divorce.  Generally, however, the Courts are reluctant not to grant divorces where parties have been separated for 12 months, and the formalities of service have been attended to. 

How do I oppose the Divorce?

You will need to file a "Response to Application for Divorce" at the Court and attend the divorce hearing. It may be a good idea to obtain specialist advice from a lawyer if you wish to oppose the divorce.

What happens to my Will when I divorce?

A divorce can affect the validity of your Will.  In particular, if in your Will you have appointed your spouse as your Executor and/or included him/her as a beneficiary, those parts of your Will are automatically revoked on the day your divorce becomes final.

If you are thinking of getting divorced, or have recently been divorced, you should ask a lawyer to review your Will and/or give thought to making a new Will. 

When is my divorce final?

When you file your Application for Divorce you will be given a hearing date.  If everything is in order on the hearing date then your divorce will be granted on that day, however it will not become final until 1 month and 1 day after the day the divorce is granted.  It is only after that date that you will be free to remarry if you wish.  The Court will issue a Divorce Order, which you can then use as official proof of your divorce.

Is there anything I can do to fast track my divorce?

Yes, in certain circumstances it is possible to apply to the court to fast track your divorce – although this will not involve a reduction in the requirement that you be separated for 12 months. You should seek specialist advice from a lawyer if you wish to do so.
 

Monique Robb, Senior Associate  |  Phone: +61 2 9233 5544  |  Email: mcr@swaab.com.au

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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