The term divorce refers to a legal dissolution (or termination)
of a marriage. It does not provide for any division of property or
for any arrangements to be made for the children. These are
considered separate issues and are dealt with under separate
considerations under the Family Law Act.
The divorce process itself is relatively simply. To be eligible
to apply for divorce in Australia, the court must be satisfied that
at least one party is an Australian Citizen, intends to live in
Australia indefinitely, or has ordinarily lived in Australia for
twelve months immediately before divorce.
In addition, the court needs to be satisfied that a valid
marriage has taken place and that the marriage has broken down
irretrievably and there is no reasonable likelihood of the parties
resuming married life. To assist in satisfying the court of that
fact, the parties are required to be separated for a period of no
less than twelve months.
Often there are circumstances where a couple will reconcile for
a brief period of time before ultimately deciding that the
relationship has irretrievably broken down. The court takes into
account periods of separation in circumstances where the
reconciliation is less than three months.
There are also circumstances where parties separate under the
one roof (due to children or other financial circumstances) and the
court accepts that separation under the one roof is separation
(although additional documents need to be filed with the court to
prove that separation occurred at that time).
The administrative process for obtaining a divorce involves
filing an application. If you are applying for divorce by yourself,
then a court will hear the matter and ensure that the application
has been served upon the other party (which means that they are
aware of the proceedings) and that there is no dispute to the
divorce being made (in that you have followed the procedural
requirements and otherwise meet the conditions under the Act). If
both spouses are filing it together, it may not be necessary to
attend a hearing (although the court can still request
Should a divorce order be made at the time of hearing, it will
become effective one month and one day after. After that time, you
are able to do all things to get remarried.
Should you apply, and have granted, a divorce, it is important
to remember the following:
That it does not necessarily change any of the beneficial
entitlements your spouse may have to your superannuation; and
That it effects the provisions of your Will (should it not
otherwise have been altered);
That it does not effect the property division of the parties
and, there is a limitation under the Family Law Act that property
matters must be filed with the court within twelve months of the
date of the divorce taking effect.
Therefore, if you are considering applying for a divorce, it is
important that you also obtain advice about the division of
property, arrangements for your children and updating your
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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