Family Law ? Divorce and Separation

Divorce in Australia

The granting of a divorce order by the Federal Circuit Court legally ends a marriage. 

Australia has a no-fault divorce system which means that the Court does not need to consider why the relationship has ended or which party is supposedly ‘at fault’.

The requirements for granting a divorce are that:

• the marriage has irretrievably broken down and there is no likelihood of the parties reconciling; and
• the parties have lived separately and apart for a continuous period of 12 months.

If you have been married for less than 2 years, and unless extenuating circumstances exist (such as family violence), a certificate from a family counsellor is also required confirming that reconciliation has been considered. 

What If We Still Live Together? 

Sometimes because of religious, cultural, financial or other reasons (particularly concerning care arrangements for the children) a married couple may be technically separated but still live under the same roof.

The Court acknowledges these situations and has discretion to waive the requirement that the parties have lived separately and apart.

In such cases, you will need to file with the Court an affidavit setting out your specific circumstances and verifying that your relationship has ended despite the living arrangements.

The affidavit is filed with the divorce application and a lawyer can advise and assist in this regard. 

Divorce Application

A divorce application can be made individually or jointly.

The application is filed on-line with the Court together with a marriage certificate.  At least one applicant must be an Australian citizen or resident and if the marriage certificate is not in English a certified translation must be provided.

If the application is made individually, a copy must be ‘served’ on the other party together with a prescribed brochure about marriage and separation.

If your ex-partner is uncooperative, cannot be located or lives overseas and serving him or her is very difficult, you may be able to apply to have an order for substituted service or dispensation of service.

You will need to prove to the Court that you made all reasonable attempts to serve the documents and the application must be accompanied by an affidavit setting out the efforts made to locate and serve your ex-partner.

Source Attribution www.effectivelegalsolutions.com.au/divorce-lawyers/