1. How long do we have to be separated?
The Court requires you to be separated for a period 12 months before you can apply for a Divorce. For example, if you separated on 3 April, you cannot make an Application for Divorce until 4 April the next year.
2. How do I know we are separated?
It must be clear that at least one of you has decided the marriage is over and has communicated this to the other party. This is especially important if you separate under the one roof.
3. Can we be separated under the one roof?
Yes. However, you will need to prepare an Affidavit in support of your Application setting out the circumstances in which you and your ex-partner remained living under the one roof. Examples of the topics which should be covered in your Affidavit are:
How did you communicate to your ex-partner that the marriage was over?
Did your family and friends know you were separated?
What were your sleeping arrangements?
Were you still reliant on your spouse to carry out household chores?
Were you reliant on your spouse financially?
You may also need to file an Affidavit by a friend or family member who was aware you had separated.
4. We have been married less than 2 years, can we still apply for Divorce?
Yes. However if you have been married less than two years, the Court will require you to attend counselling to explore the possibility of reconciliation. You will be required to file an Affidavit in support of your application setting out the circumstances of your separation and the likelihood of you resuming your marriage.
5. What if we get back together after separation but then it does not work out?
You must be separated for a total period of 12 months before you can apply for a divorce. If you and your ex-partner resumed cohabitation but separated again within three months, then the periods of separation prior to and after the period of resumed cohabitation can be added together as if they were one continuous period. For example, if you separated on 2 February and resume cohabitation on 2 May, but separate again on 2 June you cannot apply for a Divorce until 3 March the next year.
However, if the period during which you and your ex-partner resume cohabitation exceeds three months, the 12 month separation requirement will recommence. For example, using the date above, if you and your ex-partner did not separate again until 15 July, you could not apply for a Divorce until 16 July the next year.
6. Do I need a copy of the marriage certificate?
Yes. If you cannot locate it you need to apply to the state or territory registry (of Births, Deaths & Marriages) for a copy.
7. What if I was married overseas?
If you were married overseas you may still be entitled to apply for a divorce in Australia. In order to apply for a divorce one of the parties must:
Regard Australia as their 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.
If you or your ex-partner have been granted Australian citizenship, you will need to provide evidence of your citizenship.
8. But I do not want a divorce, what can I do?
An application for Divorce can be made by one party or by both parties jointly.
The Court will grant a divorce if it is satisfied your marriage has broken down irretrievably and there is no reasonable likelihood of your resuming married life. If these two grounds are established and the period of separation – 12 months – has been met, then, even if you do not want to get a divorce, the other party can apply for a divorce. If you have been married less than two years when the application for divorce is made, you may be required to attend counselling to explore the possibility of reconciliation.
9. What about the kids?
In the event you have children under the age of 18 years, the Court will also need to be satisfied that proper arrangements have been made for the care, welfare and development of the children. There are questions included in the Application to give the Court information about the children. If the Court is not satisfied that proper arrangements for the children have been made, the Court will not grant the Divorce.
For the purpose of Divorce proceedings, the Court considers a child to be a child of the marriage if the child was treated by the parties as a child of the family. Accordingly, the requirement for proper arrangements to be in place is not limited to biological children of the marriage but also extends to ex-nuptial children of either party, children who are adopted and children who are not a child of either party.
If you are unsure if you have proper arrangements in place for your children and would like to discuss, please contact our office to arrange a time to meet with one of our lawyers.
10. What about the house (investments, superannuation, etc.)?
You do not have to wait until you are divorced to negotiate a property settlement. Indeed you can apply for “property orders” as soon as you separate.
However, once you are divorced you only have 12 months to apply to the Court for property Orders. If you do not apply during this time, you will need to seek leave from the Court to allow you to apply out of time.
11. I have filed a sole Application for Divorce, what do I need to do?
Once you have filed your Application for Divorce (and any supporting documents), you will need to serve your ex-partner with a copy of the Application. You cannot serve the Application yourself in person. If you think that your ex-partner will acknowledge receipt of your Application, you may serve it by post. However, if do not think your ex-partner will acknowledge service you should engaged a process server to serve the Application for you.
The Court will require an acknowledgement of service to be filed with the Court. If this does not occur, the Court cannot be satisfied that your ex-partner has been served with your Application.
12. When can I get married again?
Once you file your Application your matter will be given a date for determination. Where the Court is satisfied the formal requirements have been met, the Court will grant your Application for Divorce.
Your Divorce Order will not take effect until one month and one day after the granting of the Divorce. For example, if your Divorce Application is granted on 6 March, the Divorce Order will not take effect until 7 April. Once the Divorce Order has taken effect you are able to get remarried.
Robinson + McGuinness offers fixed fees to assist you in the preparation of your Application for Divorce. You can get started online now by clicking here. Our fees are as follows:
Joint application: $770 + disbursements*
Sole application: $880 + disbursements*
*Disbursements including filing fee of $910 and process server fee of approximately $120 only when necessary.
Where additional work is required (i.e. if you have been married less than 2 years or living separated under one roof) we can provide you with competitive pricing.
Our fees include obtaining your instructions, drafting the Application, correspondence with your former partner as required, filing the Application and reporting to you.
To obtain further information please contact us on 02 6225 7040, by email info@rmfamilylaw.com.au or get started online now by clicking here.
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