Top 10 Divorce Questions
If you’ve decided to separate from your former spouse, one of the first things you might consider is how you can make it final and obtain a divorce order. I have complied a list of the top 10 questions I get asked from my clients about divorce.
1. Who can file for divorce?
Before filing for divorce in Australia, you must meet certain criteria: –
- Be an Australian Citizen
- Have legally lived in Australia for the past 12 months
2. When can I file for divorce?
To file for divorce, you and your spouse must have been separated for more than 12 months and there must be no possibility of you and your former spouse getting back together.
If you have been married for less than two years, you and your former spouse must attend marriage counselling to discuss reconciliation prior to filing an application for divorce. If you have experienced violence or abuse or are unable to locate your spouse, you can ask the Court for permission to apply for divorce without going to marriage counselling. In this case you will need to file an affidavit explaining why you are not able to go to marriage counselling.
3. What if my former spouse and I are separated under one roof can I still apply for a divorce?
When applying for divorce, the Court needs to be satisfied that you and your spouse have lived separately for a period of 12 months immediately prior to the date of applying for a divorce. In some circumstances, people choose to separate and continue to live together under the same roof for financial,
parenting and other reasons. Living separated under one roof does not just mean sleeping separately, and requires evidence that you or your spouse said that the relationship was over, and thereafter that you did not act as husband and wife, but behaved as separate people both inside and outside of the house.
4. What if my former spouse and I ‘got back together’ for a period of time after separating?
As mentioned above, under the Family Law Act, to apply for divorce you and your spouse must have lived separately for a period of 12 months immediately prior to the date of applying for a divorce. However, this period of time does not need to be continuous. You and your former spouse may reconcile for up to a period of three months without resetting the clock on the separation period. Therefore, if after you and your spouse separate, you ‘get back together’ or decide to ‘give it another shot’, however within three months of giving it another go decide to separate again, you will not need to recommence the 12 months separation, and the total separation period includes the period before and after you and your spouse resume your relationship. It is noted that this is limited to one occasion under s 50 of the Family Law Act.
5. What documents will I need to file for divorce?
In order to apply for divorce, you will need to complete and file the application for divorce, together with a copy of your marriage certificate and if you were not born in Australia a copy of your citizenship certificate or VISA documents with the Federal Circuit Court and pay the filing fee.
Once these documents are filed, you will need to make arrangements to have them served on your former spouse. If your spouse is in Australia, you must serve the documents at least 28 days before the date for the divorce hearing. If your spouse is overseas, this is extended to 42 days.
6. Do I need to attend the divorce hearing?
You do not need to attend your divorce hearing if: –
- you do not have children under the age of 18
- if you have children under 18 and have made a joint application
You must attend your divorce hearing if you are applying on your own and have children under the age of 18 years.
7. When does the divorce order take effect?
If the Court grants the divorce, it becomes final one month and one day after the hearing date.
8. Does my divorce deal with arrangements for children and finance?
It is important to note that the granting of the divorce order does not determine issues in relation to property or parenting. The divorce order simply recognises that the marriage has ended.
If you want to make arrangements for children and property, you will need to file a separate application with the Court. We recommend speaking to a solicitor to obtain legal advice in relation to this.
9. What if I am making plans to marry my new partner?
We recommend that you do not set a date for a wedding until after your divorce order takes effect. There could be a reason that the divorce order is not made at your first divorce hearing. It is illegal to remarry until your divorce is final.
10. What if I don’t want to get divorced?
In Australia we recognise a no-fault divorce, which means that if you have been separated for more than 12 months, there are few opportunities to oppose an application for divorce. The only circumstances where a divorce application can be opposed is where the parties have not been separated for 12 months or where the Court doesn’t have jurisdiction, for example, where the parties are not Australian citizens or have not lived here legally for a continuous period of 12 months. If you wish to oppose a divorce application, you should complete and file a “Response to Divorce” setting out why you oppose the application, and appear in person on the hearing date.