Whether you are considering separating or are currently going through a separation, getting a divorce will be something that you need to consider at some stage. Obtaining a divorce simply means that the parties involved are no longer legally married – it is the official ending of a marriage. Although divorce is a largely administrative process, it does require one or both parties to apply to the Family Court for a Divorce Order. Today, we have a look at everything you need to know about applying for divorce in order to make your transition as pain-free as possible.
Separation Precedes Divorce
Before a couple can apply to the Federal Circuit Court for a divorce, they are required to be separated for a minimum of at least one year. Separation generally means living apart from each other and can be unilaterally initiated by either spouse or mutually decided. For there to be a separation, one party needs to communicate to the other that the relationship is over and they need to act in a way that confirms the intention.A couple can be separated under one roof as long as an Affidavit is filed to support your contention that you were separated under the one roof. Our experienced team of family lawyers are available to provide more information about living with your partner during separation.
Applying For A Divorce
To apply for a divorce, you or your spouse must have been separated for at least 12 months and either:
be an Australian citizen
live in Australia and consider Australia as your permanent home, or
usually reside in Australia and have done so for at least 12 months before the divorce application.
Couples may apply for divorce together (joint application) or on an individual basis (sole application). If you are putting in a sole application and have children under the age of 18 prior to separation, you must go to court unless circumstances stop you from attending.
What If I Was Married Overseas?
The Family Court has the power to dissolve overseas marriages, provided it has the jurisdiction to hear the Application. The Court’s jurisdiction is enlivened if the applicant:
is an Australian Citizen by birth, descent or grant;
a Permanent Resident; or
considers Australia as their permanent home and intends to live in Australia indefinitely
As long as these requirements are met, you are able to apply for a divorce in Australia. Do note that a copy of your overseas marriage certificate will be required.
What To Include In Your Application For Divorce
An application for divorce must include the following details:
Arrangements in place for any children under the age of 18;
Details regarding any other agreement or court orders that are already in place;
Documents to verify citizenship statuses;
For sole applications, a supporting affidavit together with an affidavit by a supporting witness is additionally required.
There are fees for applying for a divorce, which you will be responsible for. Information about current fees, including information about fee reductions or exemptions, can be found here.
Serving A Divorce
If you apply solely, you will need to arrange to serve a copy of the application to your spouse. Do note that you cannot personally serve your former partner, but you are able to do so via mail. The Federal Circuit and Family Court have special rules about the service of documents and forms to prove that the other person was served.
If your spouse is in Australia, the documents must be served at least 28 days before the court hearing.
If your spouse is overseas, the documents must be served at least 42 days before the court hearing.
Alternatively, you can serve the documents on your spouse's lawyer. A signed and dated acknowledgment of service from your spouse's lawyer is required as proof of service.
What Happens Next?
Once you apply, you will be given a hearing date. This hearing will take place before the Registrar, and if approved, your divorce will legally come into effect exactly one month and one day following the court listing. To find out more about what to expect during your divorce hearing, click here.After your divorce is finalised, you are given a time limit of 12 months to file any applications for property and spousal maintenance proceedings.
The Importance Of Seeking Legal Advice
If you are going through a separation or divorce, it is vital that you seek guidance and advice early. At Oxford Partners, our dedicated team of family lawyers make the process as pain-free as possible. With years of experience under our belt, we pride ourselves on making each client’s family law experience as positive as possible. To book a consultation, call us at (03) 9670 7577 or email us at admin@oxfordpartners.com.au.
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