In Australia we have a no-fault system of divorce.  This means that the Court will not take into account the reasons for the marriage breakdown, in determining whether you can obtain a Divorce.

The Federal Circuit Court of Australia has the power to make a divorce order that will end your marital status at law. You can apply for a divorce on your own, or jointly with your spouse.  However, before you can be granted a Divorce Certificate the following requirements must be met:

1.  You and your spouse must be separated for a period of more than 12 months.  (If there is just one period of time, during which you resume cohabitation (of less than 3 months), the periods before and after the cohabitation can be added together to satisfy the 12-month requirement).

2.  One or both of the parties must either:

     2.1.  regard Australia as his/her home and intend to live indefinitely in Australia; or

     2.2.  be an Australian citizen; or

     2.3.  ordinarily live in Australia and have done so for 12 months immediately before filing for Divorce.

3.  The Court must generally be satisfied that proper arrangements have been made for the care, welfare and development of any children. 

4.  If you are applying on your own, the Court must be satisfied that your spouse has received the Application. 

5.  If you were married for less than 2 years, you must attend counselling before filing your Application.

Usually you will not be required to attend the hearing, but that depends on whether it is a joint Application, and also if there are children of the marriage who are under 18.  If you are the sole applicant, your spouse may also decide to oppose the divorce, for example because he/she contends that you have not been separated for 12 months. However, assuming that the Court is satisfied about the matters listed above, the Court Registrar will make a Divorce Order.  This will then become final, a month and a day later.

There is a common misconception that you cannot sort out property issues until you are divorced:  not so.  However, once a Divorce Order becomes final, you then have 12 months within which to apply for maintenance or property settlement, failing which you can only apply after obtaining the Court’s permission. 

We also recommend that you update your Will once your divorce becomes final, if not before, to avoid your property being left intestate.

If you require assistance navigating the divorce process, please contact our divorce lawyers today to book an initial conference. 02 9221 8390

Contact us for answers to your family law issues.

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