Dealing with family law issues can be confusing and emotionally challenging. If a marriage breaks down, the law is not concerned with who is at fault. The only ground for divorce in Australia is irretrievable breakdown. Our ‘How to Divorce’ guide will take you through each step of the process.
1 Make an Application
In order to obtain a divorce, you would first need to make an application to the Federal Magistrates Court. You can apply either separately or together. The court will then allocate a hearing date approximately 8 weeks after filing your application.
2 Serve Documents
Once you have a hearing date, a sealed copy should be served on your spouse, provided it was not a joint application. Somebody over the age of 16 must serve the documents at least 28 days before the hearing. Importantly, you cannot serve the documents yourself. You should then file an Affidavit of Service in the court, which proves that the documents have been successfully served.
3 Attend Hearing
Typically, divorce hearings are over quite quickly. However, before granting a Divorce Order, you will first need to satisfy the court of the following conditions:
1) You have been validly married.
When filing an application with the court, you would need to provide a certified copy of your marriage certificate.
2) Your marriage has broken down irretrievably
Basically, this means that you have been separated for a minimum of 12 months and there is no likelihood of reconciliation. If you are still living together, you would need to provide an affidavit from a third party confirming the separation.
3) Arrangements are in place for the care of your children
Unless you make appropriate arrangements for your children, the court will not grant a divorce. You will include this information in the sworn application.
4) The other party must have received the documentation at least 28 days before the hearing.
The Affidavit of Service will demonstrate this.
You will also need to satisfy the court that one of the following applies to one or both parties:
- They are an Australian citizen;
- They are a legal resident of Australia; or
- They consider Australia home and have lived here for a minimum of 12 months prior to the application.
4 Receive Final Divorce Order
Generally, you will receive a Divorce Order finalising your divorce 1 month after the hearing. This will usually take approximately 13 weeks after filing the application.
If you are contemplating divorce, it is recommended that you obtain independent legal advice. Gleeson and Co. Lawyers have extensive experience in Family Law and will offer sound advice and guidance based on your needs and personal circumstances.