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What Does a Court Consider in Divorce Applications?

16th Jul 2020 Legal Advice
Going from the significant and difficult decision to divorce, to the actual process of filing a divorce application, can be overwhelming in an already complicated time. For many people it’s their first real experience of navigating the legal system. It’s important to be aware of what the court will require from you and your partner, and what they will consider when reviewing your divorce application. Seeking legal advice can make the divorce application process smoother. An experienced divorce and marriage separation lawyer can clearly explain the process and how it applies to your individual case, as well as assist you with drafting the necessary paperwork and submitting your divorce application to the court.

No Fault Divorce

In Australia, you don’t need to explain to the court why you’ve made the decision to divorce. The only thing the court considers is if the marriage has broken down irretrievably with no likelihood of reunion. 

Eligibility

Before filling out a divorce application form, you need to make sure you’re eligible to apply.  The first consideration is citizenship. You or your partner must be an Australian citizen or regard Australia as your indefinite home or have lived in Australia for the past 12 months. You can have been married overseas, and if you have been divorced overseas this will be recognised in Australia as long as your divorce was done under the laws of the country in question. Same-sex couples can apply for a divorce under the same rules as heterosexual couples, regardless of when or where the marriage took place. However, currently same-sex couples are not able to complete a divorce application online through the Commonwealth Courts portal. The court will also require that you and your partner have been separated for at least 12 months and one day, to prove that the marriage has broken down irretrievably. ‘Separation’ does not necessarily mean that you and your partner have been living separately, but if you have been living under the same roof you will have to provide an affidavit affirming that the relationship has broken down. The court also considers length of marriage. If you and your partner have been married less than two years you will be required to attend counselling together and file a counselling certificate along with your divorce application (or file an affidavit explaining why counselling isn’t possible).

Children

Before filing for divorce, the court will require that arrangements be made to provide for the children of a relationship. These arrangements are a separate process from divorce. You will need to draft a parenting plan and file it with the court, or seek orders from the court (after attending Family Dispute Resolution). Once appropriate arrangements have been made, the court will consider your divorce application.

Opposition

There are two kinds of divorce applications: a ‘joint’ application filed by both partners, and a ‘sole’ application filed by one individual partner. Both are valid, though as a sole applicant you will need to ‘serve’ the application to your partner. There are options if you are not able to serve your partner with the application. If your partner chooses to oppose the divorce application, the court will only consider this if:
  • There has not been 12 months and one day of separation
  • The court does not have jurisdiction (i.e neither you nor your partner meet the citizenship & residency requirements)

Attending court

In most cases, attending court isn’t necessary. You will not have to attend if:
  • There are no children under 18 of the relationship
  • You and your partner apply jointly (even if there are children under 18, if you provide an appropriate parenting plan you will not have to attend court)
You will have to attend if:
  • You are filing a sole application, and there are children under 18 of the relationship (your partner will not have to attend unless they oppose the application and have filed the appropriate paperwork)
~~~ The legal process of applying for a divorce does not have to be a complicated or traumatic process. By being aware of what the court will require and consider in your case, bolstered by the help of a legal professional, you can file your application secure in the knowledge that the process will be as easy and smooth as possible.

Impact of COVID-19

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Please contact us on 03 9670 7577 or by email at admin@oxfordpartners.com.au to speak to one of our solicitors today.