TOP 5 Helpful Divorce Facts

1. A Divorce is separate from a property settlement.  You don’t need to be Divorced to have a property settlement.

People commonly mistake the position at law and think that you need to be divorced in order to have a property settlement; this is not the case.  For the Family Law Courts to make orders dividing property there is a requirement that the parties are separated and there is no requirement for a Divorce.

A Divorce affects a parties’ marital status. There is a requirement that there has been an irretrievable breakdown of marriage and that the parties have been separated for a period of 12 months. Once a Divorce Order has been made, the parties have 12 months from the date of the Divorce becoming final to make an application for Property Settlement and/or Spousal Maintenance.  A Divorce is still relevant to a property settlement as it sets up a time limit for the parties to make sure that they have resolved their financial affairs within 12 months of being divorced.

2. You can apply for a Divorce yourself and without the other party’s consent.

To apply for an application for a Divorce in Australia, you do not need the other party’s consent.  You can make a sole application.  You do have to provide proof that you have served the documents on the other party and there are Rules that provide for how the documents are to be brought to the other party’s attention. 

The other party can object to the Divorce going through, if there are issues relating to the period of separation not being for 12 months, or if there are issues relating to the status of the marriage or jurisdictional issues connected to whether the Court has jurisdiction to deal with the matter.

3. You can apply for a Divorce although you are still living together under the one roof.

To make an application for a Divorce, you need to prove to the Court that you have been separated for a period of 12 months.   This is easy to establish if you have not actually been living together during that 12 months of separation.  There are however cases where parties are separated but continue to live separated and apart under the one roof, out of convenience.  It is often the case, if one of the parties cannot afford to move out, or the parties have children together, or they don’t intend to move out until after they settle their financial affairs.

If you have been separated for 12 months or more and are still living under the same roof, then you can apply for a divorce. However, you will need to prove to the Court that you have in fact been separated although you are living together. This will usually require you to file a separate Affidavit at the same time as filing your Divorce Application which will outline your living arrangements.  It may also assist if you can have another affidavit from an independent 3^rd party, such as a neighbour or friend who can corroborate that you are separated.  You may wish to have a lawyer assist you with the preparation of affidavits to support this requirement.

4. You don’t have to prove that someone is at fault for your Divorce to go through.

Before the commencement of the Family Law Act in 1976, to obtain a Divorce a party had to establish that one of the other parties were at fault.  This included various different grounds for Divorce including desertion, cruelty, infidelity, habitual drunkenness, imprisonment and insanity.  The Law changed in 1975 and came into effect 1976 so it is now not necessary to prove that someone is at fault for the separation. 
The party to a Divorce needs to prove that;

• The parties were married;
• They are connected to Australia (jurisdictional issues);
• That there has been an irretrievable breakdown of the relationship; and
• The parties have been separated for a period of 12 months;
• If the marriage is for less than 2 years there is a requirement that the parties attend upon a Marriage Counsellor;
• If there are children under 18, when granting a Divorce, the Court needs to be satisfied that the children’s arrangements are appropriate, if they are not satisfied that the arrangements are appropriate, a declaration can be made that it is appropriate to grant the Divorce even if the children’s arrangements are not appropriate.

5. You don’t always have to attend the Divorce Hearing

When you file your Application, you can nominate whether you wish to attend Court or not.  You are required to attend the Divorce Hearing in the following circumstances;

• if you have children under 18 years or
• if you are making an application when you have lived together under the one roof;
• If you have any issues with serving the other party and you need to ask for the Court to adjourn your mater; and/or
• If the other person, responds to the Divorce and objects to the Divorce going through. 

You do not need to attend Court if:

• you do not have children under 18 years or
• you have filed a Joint Application for a Divorce.

You also may need to check how the Divorce Hearing will be proceeding.  Whether you would need to be at Court in person, via Microsoft Teams (video) or via telephone as this will depend upon the Court and the Registry and whether the Court has gone back to regular face-to-face mentions following the pandemic. You will receive notice of the nature of the listing after you file and before the Court date.

If you would like any more information to assist with your Divorce application, feel contact one of Solari and Stock’s Family Law Team on 02 8525 2700 or click here to request an appointment.

Article written by Nicole Quirk
Photo by Brett Jordan on Unsplash