Divorce is the dissolution of the marriage. An Application for Divorce can be made by one or both of the parties to a marriage.
Grounds for Divorce
An Application for Divorce can only be made on the ground that the marriage has ‘broken down irretrievably’. This is established by satisfying the Court that the parties have separated and have been living separately and apart for a period of at least 12 months. In some circumstances, parties may be ‘separated’ even though they continue to reside under the same roof.
The Court will not grant a Divorce where it is shown that there is a reasonable likelihood of the parties resuming cohabitation.
Timing of Application
An Application for Divorce can be made:
- after 2 years of marriage;
- within the first 2 years of the marriage – but only if the parties have obtained a signed certificate from a family counsellor or other specified person which states that the parties have considered a reconciliation. This requirement may be waived in special circumstances.
If the Application is made jointly by the parties:
- there is no requirement of service of the Application;
- the Court filing fee should be borne by the parties equally.
If the Application is not made jointly:
- the applicant must serve the Application on the other party in accordance with the Federal Circuit Court of Australia Rules;
- the other party may oppose the Application by filing a Response.
Will I need to attend Court ?
If the Application is made jointly by the parties, then there is no need for the parties to attend Court for the hearing of the Application. If the Application is not joint, the parties are not required to attend on the hearing of the Application unless there are children under 18.
Effect of Divorce Order
The Divorce Order is effective one calendar month after the Order is made by the Court. The Court will issue a Certificate of Divorce that certifies the date that the Divorce Order takes effect. A party is free to remarry once the Order has taken effect.
Proceedings for property and maintenance orders may be brought at any time after separation but require the leave of the Court if brought more than 12 months after a decree of Divorce.
Solari & Stock’s Family Law Team can assist you with expert advice on all matters pertaining to Divorce.