Photo Courtesy: Luke Leung collected from Unsplash
If you want to get a divorce in Australia, you need the know the legal requirements for it. In order to apply for a divorce, you or your partner need to either
regard Australia as your home and intend to live in Australia indefinitely, or
are an Australian citizen by birth, descent or by a grant of Australian citizenship, or
ordinarily, live in Australia and have done so for 12 months immediately before filing for a divorce.
In this article, I am going to discuss the most frequently asked question by the people who are interested to get a divorce.
1. How long do we have to be separated before applying for a divorce?
Before you are eligible to apply for a divorce in the Federal Circuit Court of Australia, you and your partner need to be separated for 1 year. For example, if you are separated on 1 February 2021, you will be eligible to apply for divorce after 1 February 2022. At the beginning of such separation, at least one of you must decide that the marriage is over. It is also important that such intention to separate must be communicated to the other party. This is especially relevant if you separate under one roof.
2. Can we separate under one roof?
Yes, you can separate under one roof. However, you have to establish before the court showing the evidence that you and your partner had lived separately under one roof for divorce. You can prove you are separated under one roof if you can show that you have expressly communicated to your partner your intention to separate under one roof and you have told your family and friends that you were separated. The Court may look at your social interaction and behaviour as partners during that period to determine your relationship status. You will need to file an Affidavit to support your contention that you were separated under one roof. You may also need to file an Affidavit by a friend or family member who was aware that you had separated.
3. What happens if we decide to get back after separation, but after a while, it does not work?
To apply for a divorce in Australia, you need to be separated for one year immediately before making the application. If you get back together for a while and then decide to separate again, the time starts all over again if the reconciliation period is more than 3 months. Therefore, if you got back together for less than 3 months before separating again, the previous period of separation will be added to the fresh separation period for counting one year of separation.
4. What happens if my partner wants a divorce but I do not want it?
The Court will grant a divorce if it is satisfied that -
a marriage has broken down irretrievably and
there is no reasonable likelihood of you resuming married life.
If these two grounds are established and 12 months of separation has been met, then, the other party can apply for a divorce. You may not be able to stop the divorce even if you do not want it to happen.
5. What happens if we were married overseas?
To apply for a divorce in Australia, one of the parties must-
regard Australia as your home and intend to live indefinitely in Australia or
be an Australian citizen by birth or descent or
have been granted Australian citizenship or
ordinarily, live in Australia and have lived here for at least the last 12 months.
Therefore, whether you and your partner were married in Australia or not, is not relevant as long as the above conditions are met. If you were married overseas you may still be entitled to apply for a divorce in Australia. You will need your marriage certificate to apply for the divorce though.
6. What will happen to our kids and property when we get divorced?
If you and your partner have children of the marriage under 18 years of age, the Court needs to be satisfied that there are appropriate arrangements in place for those children before a divorce will be granted. In the divorce application, you need to mention what are the arrangements that you have made for the custody and care of your children. As soon as you are separated, you can either agree to the custody arrangements for your kids or apply to the Court for orders about children, called “parenting orders” if the need exists. If the parenting proceedings are already before the Court, usually the divorce order will be granted even if before those are finalised.
You can also apply for property orders before the divorce as soon as you are separated. However, you have to bring a proceeding for a property settlement within one year of your divorce being granted.
If you need more information, please visit the Federal Circuit Court.
If you need help to find a lawyer, specialising in Family Law, who can give you advice and assistance with your divorce, custody of your children or property settlement, please contact us on www.lawcircuit.com.au or call us at 0418631798 or email us at bonhi@lawcircuit.com.au
In Law Circuit, we are focused to connect you with the best legal services to solve your problem. We are here to make your legal journey easier.