Divorce is the process by which parties formally and legally end their marriage. An application for divorce does not deal with issues of property distribution or child arrangements, those are different proceedings that must be initiated separately from a divorce application.
Divorce applications are dealt with in the Federal Circuit and Family Court of Australia (the Court) under Part VI of the Family Law Act 1975.
Can I apply for Divorce?
You must have been separated from your spouse for at least 12 months and show there is no likelihood of getting back together for your divorce to be granted. You are still able to get divorced if you have been living in the same house as your spouse for those 12 months, if you can show that you were separated during that time, also known as being separated but living under one roof.
You are able to apply for a divorce in the Court if either you or your spouse:
- Are an Australian citizen; or
- Ordinarily live in Australia for the previous 12 months before applying for divorce; or
- Intend to live in Australia indefinitely.
You are still able to apply for a divorce in the Court, even if you were married overseas and hold a foreign marriage certificate. Your foreign marriage must be recognized in Australia, pursuant to Part VA of the Marriage Act 1961 and must be translated to English (if it is not originally in English) along with an affidavit translation of marriage certificate from a certified translator.
How do I apply for Divorce?
You may choose to either apply for divorce yourself, or you may choose to engage solicitors to assist and represent you in your application.
Firstly, you may apply for a divorce by yourself or together with your spouse. If you decide to apply by yourself, you must serve the application to the other party either by post or arrange an in-person delivery. Serving the other party means that you provide them with notice of your application of divorce, along with the Application for Divorce and the Notice of Application for Divorce. More information about serving the other party can be found on the Court’s website at https://www.fcfcoa.gov.au/hdi/serve-divorce.
If the other party is in Australia, the documents must be served at least 28 days before the court hearing. If they are overseas, the documents must be served at least 42 days before the court hearing.
Can the Court also listen to my other family matters?
The application for divorce only deals with the divorce, not any other family matter such as children arrangements or property distribution. You will need to initiate separate proceedings and should engage a solicitor to represent you.
Importantly, if there are children under the age of 18 years old at the time of the divorce application, the Court must be satisfied that there is a current child arrangement in place for the children. The Court will likely ask you to provide information of the current arrangements, so it is important that you are prepared to show the court what the current arrangements are and how the child/children are currently communicating and spending time with each parent.
What happens after I am granted a divorce?
Upon being granted a divorce by the court, you will no longer be legally married to your spouse. you will be able to be remarried once your divorce order is made final, which is one month and one day after the divorce hearing.
After your divorce order is final, you have limitation periods for applying to the Court for property and financial matters. You must begin the process for financial/property matters within 12 months of the grant of divorce.
If you are going through a divorce and want to receive clear and quality advice, contact the team of family law experts at Melbourne Lawyers & Mediators to assist you though this process.
