Divorce is an order by the court ending a marriage. People seek divorce orders for many reasons including, for instance, a wish to remarry and seeking closure of an unsuccessful relationship.

Divorce is different to property settlement, children’s contact and residence, spousal maintenance and child support.

What is the effect of a Divorce?

Divorce means that a couple are officially and legally no longer married.

The parties may legally remarry without committing bigamy.

If a party to the marriage wishes to apply for an order for property settlement or spousal maintenance, they can and very often do make an application for these before applying for a divorce. Once an application for divorce has been filed an application for property settlement or spousal maintenance must be made within 12 months of the divorce being made final. Applications can only be made after 12 months with the specific permission of the Court and this can be difficult to obtain.

Divorce will also void any provisions in the former spouses Wills concerning one another (potentially creating a partial intestacy if a new Will is not made) or revoking a Power of Attorney in favour of the former spouse. We would advise you to review your will if you separate from your spouse and we would be pleased to assist you to do that.

Divorce will also void any provisions in the former spouses Wills concerning one another (potentially creating a partial intestacy if a new Will is not made) or revoking a Power of Attorney in favour of the former spouse.

What are the grounds for Divorce?

The only ground for granting a divorce is that a marriage has broken down irretrievably. The Court hearing your divorce application will be satisfied your marriage has broken down irretrievably if you and your spouse separated and lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application and there is no prospect of reconciliation. Living ‘separately and apart’ has both a mental and physical element. There are four ways of satisfying this requirement:

1. A mutual intention to separate and actual separation

2. One spouse intends to separate and there is actual separation

3. A mutual intention to separate and there is separation under the one roof

4. One spouse intends to separate and there is separation under the one roof

There are provisions dealing with any period of reconciliation. Providing the reconciliation does not total more than three months then the separation period does not have to ‘start again’. This maximum of three months does not count in the 12 months and must be ‘added on’ accordingly.

The law in this area can be complicated and we strongly suggest contacting us to ensure you are entitled to apply for a divorce.

How do you apply for a Divorce?

A divorce order is obtained by applying to the Federal Magistrates Court.

A form for the application is prescribed by the court. The form must be accompanied by the appropriate filing fee and a copy of your marriage certificate. The court will then set a date for hearing the application. The Application can be made jointly with your spouse or on your own.

If you make the Application on your own it must then be served upon the other spouse at least 42 days before the hearing date.

At the hearing, the court will require:-

• Proof of service of the divorce application on your spouse (if required); and
  
• To be satisfied as to the arrangements for residence, contact and financial support of the children of the marriage under the age of 18 years.
  

Do I have to attend the Hearing?

If there are children under the age of 18, you must attend the hearing of the application. If there are no children under the age of 18 you may not need to attend a hearing.

Can my spouse object?

As long as you have:-

1. Filled in the form correctly;
   
2. Paid your filing fee and filed your marriage certificate;
   
3. Provided proof of service of your spouse in accordance with the requirements of the Family Court Act; and
   
4. Satisfied the court that:-
   
   

(i) Your marriage has broken down irretrievably (12 months separation as discussed above); and

(ii) Appropriate arrangements are made for the children of the marriage under 18 years; and

(iii) It is appropriate for the Australian Courts to deal with your application

your spouse cannot object to the divorce.

How can I make it happen?

You may contact us to arrange to have us prepare your divorce application, serve your spouse and appear at the hearing with you.

Back to The Top