July 4, 2023

“I want to get a divorce,” can be what one person says to another when their marriage has broken down and they do not wish to reconcile. It’s important to understand what happens next.

As far as the Family Law Courts are concerned, divorce proceedings are formal proceedings sought to legally terminate a valid marriage between two people. Divorce proceedings are dealt with by the Courts separately to parenting and property proceedings.

In Australia, there is one ground for divorce – namely that the relationship has broken down irretrievably, meaning there are absolutely no chances of reconciling.

This is generally established if a couple has separated and thereafter lived ‘separately and apart’ for a continuous period of not less than 12 months immediately preceding the filing an Application for Divorce.

Couples who have separated but remain living in the same residence can be considered as living separately and apart, provided they offer additional evidence to the Court. The Court can consider circumstances where couples have been married for less than two years and couples who have resumed cohabitation after separation, and go onto separating again. There are specific requirements in relation to these circumstances that couples should be aware of.

If a party to a marriage is eligible to make an Application for Divorce, an application can be made either individually by one party or jointly, depending on the circumstances of the parties. An Application for Divorce is able to be completed and filed online using the Commonwealth Courts Portal or completed in hard-copy and filed with the Federal Circuit Court of Australia. Once an Application is filed, the Court will set a Hearing Date for a Registrar to review the Application.

If an Application is made individually by one party, there are specific requirements for proper service of the application upon the other party. The requirement of service must be appropriately satisfied for the Court to be able to make the Divorce Order.

Even if a couple was married overseas, an Australian Court has jurisdiction to determine divorce proceedings, so long as at least one party to the marriage meets one of the below criteria:

1.          A citizen of Australia;

2.          Domiciled in Australia; and/or

3.          Ordinarily resident in Australia and has been so resident for at least one year prior to filing the application.

The party or parties’ making the Application for Divorce must be able to satisfy the Court that a valid marriage exists. This can often be evidenced by a formal Marriage Certificate. If the Marriage Certificate is not written in English, the Court will require additional proof which may include a translated marriage certificate and an Affidavit of Translation.

What if there are children from the marriage?

Where children are involved, the Court must be satisfied that proper arrangements in all the circumstances have been made for the care, welfare and development of any children of the marriage.

If the Court is satisfied that the required elements are met, the Court will make a Divorce Order which will take effect one month plus one day from the date the Divorce Order is made.

Whilst divorce proceedings are often regarded as a formality, when a Divorce Order takes effect, it “starts the clock” running in terms of the time limitation period for couples to effect their property settlement. Family law legislation mandates strict time limits in relation to claims for a property settlement following the making of a divorce order in the context of married couples or upon separation in the context of de-facto couples.

There are however some circumstances where the Court may grant leave to a party seeking to make an application after the deadline has passed.

Marriage breakdown and separation is a difficult process and it is often unnerving to discover there are important time deadlines to be aware of.

Our expert solicitors at Shipton & Associates can help you navigate through this process and provide you with further information about divorce, children and property matters. Please feel free to contact us on 9976 5222.