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I think I want a Divorce: Where Do I Start?
The word divorce often carries significant negative connotations. Despite the implementation of 'no fault divorce' since 1976 (after the Family Law Act 1975 was enacted), many people hesitate to discuss divorce, or proceed with a divorce. This article neither advocates for or against divorce, however, it provides the opportunity to equip yourself with the necessary legal knowledge if you are contemplating this decision.
When can I get divorced?
A common misconception is that divorce can be finalised quickly. This is not the case. You must be separated for a period of twelve months and ensure there is no reasonable likelihood of resuming married life, before you can apply for a divorce. Additionally, you must have been married for at least two years prior to applying for divorce. If you wish to apply before this period, you are required to attend counselling and file a counselling certificate.
How do I apply?
There are two ways in which a divorce application can be made:-
- Sole application – where you apply for the divorce by yourself (this can be with the assistance of a lawyer); or
- Joint application - where you apply for the divorce with the other party to the marriage (again this can be with or without legal assistance).
Generally, the option that you choose will depend on whether you have had a conversation with the other party regarding divorce and if they are agreeable to the divorce. If they are not, or you are no longer in communication with them, then you can file a sole application. If it is you solely applying, you must serve the Application for Divorce on the other party. This can be done personally (generally it is best to hire a process server to serve the documents) or by posting it to the other party at their last known address. There are certain requirements that you must follow if you must serve documents and further information can be found on the courts website.
What happens next
Once the application is filed, a hearing date is scheduled. Whether you need to appear at the hearing depends on whether you have children under the age of 18 and whether the application is a sole application or a joint application. Whilst the court will not decide issues about finances, property or parenting arrangements at a divorce hearing, it does want to know if there are satisfactory arrangements in place for any children under 18 years of age. Therefore, it is crucial to detail the current arrangements for any children under 18 within your application.
Following the hearing, if your divorce is granted, you will receive your divorce order one month and one day after the hearing. If the divorce is not granted, you will be provided with information as to why it was not granted, and advised on what further steps need to be taken so that the divorce will be granted by the Registrar at the next court date.
How does a divorce affect family law matters?
Once your divorce is granted, each party has twelve months from the date of the divorce order to file an application to finalise their property matters. Failure to file within this timeframe means that you must ask the Court for leave to finalise your property settlement. This is not always granted and typically requires extenuating circumstances for this to occur.
Divorce does not directly affect parenting arrangements, however, it is essential to consider the best interests of any children involved during this time. Divorce can be an emotionally challenging time for all parties and it is imperative to have a strong support system in place. Seeking legal advice is highly recommended during this process.
To obtain advice tailored to your individual situation, you can contact our office to make an appointment with one of our family law solicitors on (07) 4963 2000 or through our online contact form below.