If your marriage has broken down, you may be wondering about the process of getting a divorce. Here are our ten most frequently asked questions on divorce.
SS Lawyers are experienced Family Lawyers, ready to assist with your divorce or separation matter. Call our office on 02 9570 4088 (Sydney) or 07 3105 2804 (Townsville) and arrange an appointment with our professional solicitors today.
1. We want a Divorce. Who is at fault?
In Australia, divorces are granted on a ‘no fault’ basis. What this means, is that to be granted a divorce, the applicant need only prove that ‘the relationship has broken down irretrievably’. Neither party is considered to be ‘at fault’ for the divorce by the Court.
2. Who can make an application for divorce?
An application for divorce can be made by either spouse as a sole application, or by both as a joint application. Either you or your spouse must be able to satisfy the jurisdictional requirements, being that you or your spouse:
- Regard Australia as your home and intend to live in Australia indefinitely,
- Are an Australian citizen by birth, descent or by grant of Australian citizenship, or
- Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce
3. When can I apply for a divorce?
You and your spouse need to have been separated for a minimum of 1 year before you can make an application for divorce.
If you have been married for a period less than two years, you will also be required to file a counselling certificate. You can obtain a counselling certificate by attending counselling with your spouse and consider the possibility of reconciling the relationship.
4. Can we be separated, but still live together?
The court refers to this as being ‘separated under the one roof’. If you seek to apply for divorce after having been separated under the one roof, you will need to provide the court with further information to establish the separation. Such evidence would be contained in an affidavit from you, or both you and your partner in the case of a joint application. You will also be required to file an affidavit from a third party who is aware of the separation and can provide evidence in support.
5. I was married overseas; can I still get divorced in Australia?
For the court to have jurisdiction to grant your divorce, your marriage must be legally recognised in Australia. You are required to file a copy of your marriage certificate with your divorce application. If your marriage certificate is in a foreign language, you will also need to have the marriage certificate translated into English by a registered translator. A copy of the marriage certificate and the translation will need to be attached to an affidavit that is filed in the Court.
6. My spouse and I got back together and then separated again, can we still get divorced?
To apply for divorce, the total period of separation must be one year. If you and your spouse get back together for a period longer than three months, the one year period starts again. For example, if you separate on 1 January 2020, reconcile on 1 April 2020 and do not separate until 1 September 2020, you cannot apply for a divorce until 2 September 2021.
7. I can’t find my marriage certificate; can I still get divorced?
You will need to file a copy of your marriage certificate when you apply for a divorce. If you are unable to locate your marriage certificate, you may apply to Births, Deaths and Marriages for a copy.
8. What happens to the children of our marriage after we are divorced?
If you have children under the age of 18, you must satisfy the court that there are appropriate arrangements for those children in order for the divorce to be granted. This includes arrangements for their living arrangements, financial support, health and education.
9. Do I need to be divorced before I make an application to the court for parenting or property orders?
No – you can make an application for parenting or property orders immediately after separation. You do not need to be divorced. An application for parenting orders can be made at any time, while the children are under the age of 18. An application for property adjustment must be made within 12 months of your divorce becoming final. If you seek to make an application outside the 12 month window, you will need special permission of a court. This is not always granted.
10. I need help with my divorce, where do I go?
Getting divorced can be difficult – financially, emotionally, and legally. It is important to obtain specialised legal advice so that you fully understand your legal rights and can make an informed decision. Contact SS Lawyers today to discuss your divorce or separation.