There is only one ground for divorce in Australia, which is that the marriage has broken down irretrievably.
That is established by the couple having:
- separated ; and
- lived “separately and apart” for at least 12 months before an Application for Divorce is filed;
The Court does not take into consideration who was at “fault” in the breakdown of the marriage. However, the Court may not grant a divorce if there are no proper arrangements for any children of the marriage under 18 years of age.
A couple can still be regarded as having separated even if they have continued to live under the one roof after their marriage has broken down. Independent evidence will be required to prove the breakdown of the marriage during that time.
The Hearing
You are required to attend the Hearing if you and your spouse have children under the age of 18, unless you have filed a joint application for divorce with your spouse.
At the hearing, the Court is concerned with ensuring that all the formalities of the process (including proof of marriage, proof of separation, and proof of service of the Application on the other party) have been fulfilled and that proper arrangements have been made for the care, welfare and development of any children of the marriage under 18 years of age (such as their living arrangements, education, health and financial support). The Court doesn’t need to know why or how the marriage ended.
Usually there is no need for us to attend the hearing, however, we will of course attend the hearing with you if you wish. We will assist in ensuring all the necessary details have been attended to so that the Divorce Hearing goes smoothly. Once the Court is satisfied as to all those matters, it will then make a Divorce Order, which will take effect and become final one month and one day later, on which day the marriage will be terminated. You cannot remarry until after the Divorce Order takes effect.
Further considerations
There is no need to delay making arrangements about the care of the children or division of your property until the divorce is finalised. Those sorts of things can be dealt with straight away. It is important to remember that there is a one year time limit after the Divorce Orders takes effect to file an application to start proceedings for a Property Settlement or an application for spousal maintenance in Court. After that time, such an application cannot be made without the leave of the Court.
A Divorce Order which has taken effect may revoke or affect your Will. You should also consider making a new Will, or changing how the title to the property you own jointly with your former partner is held, after you are divorced. You may not want your property to go to your former partner in the event of your death.
We will support and assist you with those matters – everything from applying for a Divorce, preparation of a new will, to the initiation of Court proceedings to protect your family, your future and your assets. In short, our aim is to ensure that the entire process is taken care of quickly, professionally and cost-effectively.
For more information about applying for a Divorce, click here.