Commercial Employment Law Estate Planning Family General

TEN MOST COMMONLY ASKED QUESTIONS ABOUT DIVORCE

04.11.2020

1. HOW LONG DO WE HAVE TO BE SEPARATED?

To apply for a Divorce in Australia you must have been separated for 12 months. This means, if you separated on 1 January 2020, you can only make an application for divorce after 2 January 2021. To establish separation, at least one spouse must make a conscious decision to end the marriage and must communicate this decision to their spouse in some way.

2. CAN WE BE SEPARATED BUT STILL LIVE TOGETHER?

There is a concept of being separated under the one roof. To establish you were separated during the time you were still living together you must meet certain criteria. An Affidavit needs to be filed with your Divorce Application which outlines to the court the living arrangements between you and your ex-spouses whilst you were separated under the one roof.

3. HOW LONG DO WE HAVE TO BE MARRIED TO APPLY FOR DIVORCE?

If you have been married for less than two years, you are required to attend counselling. If after counselling there is no scope for reconciliation, the parties must file an affidavit with the application for divorce advising the court of their separation and the likelihood of reconciliation.

4. WHAT IF WE GET BACK TOGETHER BUT IT DOESN’T WORK OUT?

To apply for a divorce, you must be separated for a total period of 12 months. After separation if you and your ex-spouse resumed a relationship and then separate again within 3 months, the time of separation before and after cohabitation can be combined to make up the 12-month period. As an example, if you separated on 1 January and resume a relationship on 1 June, then separate again on 1 August, you cannot apply for a Divorce until 2 March the following year. If the period of cohabitation is longer than 3 months, the 12-month period will commence again after separation. So, using the above example, if you did not separate again until 2 September, you could not apply for a Divorce until 3 September in the following year.

5. CAN I APPLY FOR A DIVORCE IN AUSTRALIA IF I WAS MARRIED OVERSEAS?

If you meet the criteria, you can still apply for a divorce in Australia even though you were married overseas. The criteria is, that one spouse must:
1. Consider Australia as their home and intend to live indefinitely in Australia; or
2. Be an Australian citizen by birth or descent; or
3. Have been granted Australian citizenship; or
4. Ordinarily live in Australia and have lived here for at least the last 12 months.
If one of the parties has been granted Australian citizenship, they will need to provide evidence of citizenship.

6. WHAT IF I DON’T WANT A DIVORCE?

An application for Divorce can be made either by one spouse or jointly by both spouses. That being the case, your spouse can apply for a divorce order with or without you. If the parties have been separated for 12 months and the marriage has broken down irretrievably, without a reasonable likelihood of resuming a relationship, the court will grant a Divorce Order, regardless of whether or not you agree to it.

7. WHAT ABOUT THE KIDS?

If there are children under 18 years, you must satisfy the court that arrangements have been made for the care and parental responsibility of the children before you will be granted a divorce order. This is not limited to biological children of the marriage. Proper arrangements must be put in place for the children of either party, adopted children and children who are not a child of either party, but were treated by the parties as children of the family.

8. WHAT ABOUT OUR ASSETS AND LIABILITIES?

You are not required to wait until you are divorced to start a property settlement. However, it is important to note that once you are divorced you must commence property settlement proceedings within 12 months. If you do not apply within this limitation period, you are required to seek leave from the Court in order to apply for a property settlement.

9. WHAT ARE MY REQUIREMENTS AS A SOLE APPLICATION FOR DIVORCE?

When your Application for Divorce and supporting documents have been filed, you will need to serve your ex-spouse with a copy. You yourself cannot give them a copy in person. They will be required to file an acknowledgement of service with the Court. Service can be done by post however, if you do not think they will acknowledge service it would be best to engage a process server to serve your Application on your ex-spouse.

10. WHEN CAN I GET MARRIED AGAIN?

After filing your Application, you will be given a date for determination. If the Court is satisfied you have met all requirements you will be granted your Application for Divorce.
The Divorce Order takes effect one month and one day after the order is granted. For example, if your Divorce Application is granted on 1 January, the Divorce Order will not take effect until 2 February. You can marry again as soon as the Divorce Order has taken effect.

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