Divorce

Divorce is the legal severance of a marriage. A divorce order formally terminates the marriage and enables each former spouse to remarry.

 

Divorce, parenting and financial issues, are all dealt with separately under the Family Law Act. You do not need to be divorced before dealing with parenting and financial issues under the Act. The Divorce does not deal with other matters such as spousal maintenance or property division.

Before granting a divorce the Court must be satisfied of a number of things (Section 48 Family Law Act):

  1. That the parties were married;

  1. That the marriage has irretrievably broken down;

  1. That the parties have been separated for at least twelve months. If during that 12 month period the parties are separated under the one roof, they may still apply for a divorce, however, they need to provide evidence that the parties were in fact separated during that period. Where there have been several separations, the total period of separation (not including the time where the parties were reconciled) must equate to at least 12 months.

  1. That at least one party to the marriage considers the marriage to be over and communicates this belief to the other party; and

 

That proper arrangements have been made for the care of any children to the marriage under the age of 18 years.

 



Divorce Hearing in the Absence of the Parties

 

The Family Law Act, it is possible for the Court to make an order for dissolution of marriage in the absence of the parties, providing the following conditions are met:

The proceedings are undefended;

  1. There are no children of the marriage under the age of eighteen;
  2. The Applicant requests the Court to determine the proceedings in the absence of the parties; and
  3. The respondent has not requested the Court not to determine the proceedings in the presence of the parties.

 

It is also possible for the court to hear the application in the absence of the parties even where there are children under the age of 18 provided the following conditions are met:

The Application for Divorce is a joint application (both parties applying together);

  1. The Application is properly prepared and the Court is satisfied that all of the requirements for the divorce Order have been met; and
  2. The Applicants requests the Court to determine the proceedings in the absence of the parties.

 

Once the Court is satisfied that the separation requirements are met, the Court will grant a probationary Divorce. The Divorce becomes final automatically one month and one day after the probationary Divorce is granted. Once the Final Divorce is granted, the parties are free to re-marry.

 

It is essential that both parties prepare a new will after the granting of the Divorce as some previous previsions of their wills may become invalid as a consequence of the Divorce Order.

 

Before lodging an Application for Divorce it is necessary to obtain a copy of your Marriage Certificate (to satisfy the Court that the parties were married). If you do not have a copy of your Marriage Certificate one can be obtained from the Registry of Births Deaths and Marriages in the State where you were married.

 

Divorce in Australia is secular. The parties are entitled to a divorce regardless of their religious beliefs. The only ground for obtaining a divorce is that the marriage has broken down irretrievably.This is evidenced by the 12 months of separation.


 



Jurisdiction

 

Applications for Divorce in Australia are heard in the Federal Magistrates Court.

 


For the Court to have jurisdiction in Divorce Applications, either the husband or the wife to the marriage must fall into one of the following categories at the time that the Application for Divorce is filed with the Court:

 

  1. Regards Australia as their home and intends to live in Australia indefinitely, or
  2. Is an Australian citizen by birth, descent or by grant of Australian citizenship, or
  3. Ordinarily lives in Australia and has done so for 12 months immediately before filing the application for divorce.

 

An Application for Divorce is heard in the Federal Magistrates Court and the Applicant is normally required to attend the hearing. In special circumstances, the Applicant may be excused from attending.


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