How to Get a Divorce: Understanding The Marriage Separation Process

4th Jun 2020 Oxford Partners Blog

Deciding it’s time to end a marriage can be one of the most difficult decisions a person makes in their life, quickly followed by a long list of legal, practical, and financial concerns. It’s complicated to move from ‘I want a divorce’ to understanding exactly how the marriage separation process works. However, understanding the process becomes simpler with experienced divorce and marriage separation lawyers to support you.

First Steps: Separation

Under the Australian Family Law Act 1975, divorce is not possible without the couple having been first separated for a period of 12 months. However, this doesn’t necessarily mean that you have to have lived separately for 12 months. If you and your spouse have been separated but living in the same house, you can still apply for divorce but will need to provide an affidavit proving separation.

How to Get a Divorce

Before going through the application process for a divorce, it’s important to consider your eligibility. To apply for a divorce you must:

Have been separated at least 12 months
Meet the Australian Citizenship Requirements
Confirm that the marriage has broken down and is not likely to resume at a later date

In Australia divorce is no-fault, meaning that you will not have to provide any reasons for why the marriage broke down. It is also possible for divorce to be filed by one or both parties, though there are different considerations for both. Additionally, if you and your partner have been married for less than 2 years, there is a legal requirement for the couple to attend counselling to discuss potential reconciliation, though it is possible to waive this with permission of the court.

Outside the Divorce Application

Often, the legality of applying for the divorce itself isn’t the most complicated aspect of ending a marriage. Depending on your situation, there are likely two main considerations at the forefront of your mind:

Children

If there are children ‘of the marriage’ aged under 18, you will be required to attend court, as well as provide details about ongoing arrangements in your divorce application. The divorce process itself does not decide parenting issues - you will need to handle these in addition to the divorce application, either through coming to an arrangement with your co-parent and filing it with the court, or seeking court orders if an arrangement can’t be agreed on. In either case, seeking support from a lawyer with experience in family mediation and legal advice will be crucial to ensuring you and your children are well-supported.

Assets

There’s no standard way to divide finances, property, and belongings after a separation or divorce. The arrangements will come down to your specific circumstances. Three possibilities in trying to resolve your financial matters are:

You and your spouse come to an agreement outside of the courts
You and your spouse come to an agreement and formalise it legally through the courts
If you cannot agree, the court will decide on financial orders based on the situation

Asset management can quickly get complicated legally, so be sure to keep everything well-documented and seek out expert advice. ~ Separation and divorce can be a confusing, emotionally conflicted process, but it doesn’t have to overwhelm you. By understanding your legal requirements, including time-frames and application nuances, as well as relying on experienced professionals to help you understand your specific situation, you will be able to approach this difficult time confident that you will come out the other side with the best possible outcome.

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