Getting un-married – applying for a divorce

Saturday March 21, 2020

Getting un-married – applying for a divorce

Separating married couples will likely wish to apply for divorce.  This is completely separate to negotiating a property settlement or children's arrangements.  Some couples wish to obtain a divorce order as soon as possible, and others may neglect to turn their minds to this process altogether.

An application for divorce can be made by both parties together, or by one party solely.  The Court will grant an order for divorce, so long as the following factors are satisfied:

  • There was a marriage – a copy of the marriage certificate must be located and filed with the application;
  • The marriage has broken down irretrievably, whether separation was instigated by one party only, or was otherwise mutual – if separation was 'one-sided', it must have been communicated to the other party;
  • There is no reasonable likelihood of the relationship recommencing; and
  • The date of separation is no less than 12 months before the date of applying.

The Court must also be satisfied of a connection with Australia, for example one or either party is residing in Australia.  Further, if the application for divorce was not made jointly, there are requirements that it be served upon the other party within a specified period of time and no later than 28 days before the date of the hearing.

It is generally advisable that applying for a divorce comes second in priority to negotiating a property settlement, for one critical reason; the divorce initiates the running of the limitation period for commencing proceedings for property settlement and maintenance (if those matters have not already been addressed).  This limitation period is 12 months from the date the divorce order is made, after which time the parties are each prevented from bringing any application for property settlement in the Federal Circuit Court or the Family Court of Australia. Conversely, applications to the Court in relation to children's/parenting matters can be made at any time.

A divorce is needed for a number of reasons, including:

  • In order to re-marry (in Australia, a person cannot be married to more than one person at the same time); and
  • If no formal divorce order is obtained, it may have an effect on the way a deceased estate is dealt with if no valid Will exists at the time of death.

Unless there are exceptional circumstances, an application for divorce cannot be made if the marriage took place less than two years before applying. In this scenario, the Court will usually require counselling before accepting an application for divorce.   Separation can occur less than two years after the marriage, but the application cannot be made until two years later.  Further, separation must have occurred no less than a period of 12 months before applying. Separation can be physical separation, but it can also include the situation where the parties have decided the relationship is over, but, perhaps for financial reasons,  have continued living together in the same house (which is referred to as "living separately and apart under the one roof"). It is important to prove that separation occurred more than 12 months before you filed your application for divorce, which may require producing evidence by way of affidavit.

Once the Divorce Application is filed, a hearing date before a Registrar in the Federal Circuit Court of Australia is obtained – this may be a considerable period of time after filing the application.  The applicant may or may not be required to attend the divorce hearing.

The marriage is not legally terminated until one month and one day after the Registrar grants the Order. This means that you cannot re-marry until one month and one day after the Order is made by the Court. It is not advisable to plan a wedding until a Divorce Order has been granted as some issues may arise which will prevent the new marriage from going ahead.

The Divorce Application itself is a user friendly, questionnaire-type Court form which can be completed without legal assistance.  This said, if queries in relation to a more complicated situation in respect to applying for a divorce exist, an expert family lawyer should be consulted.