1/ Did you know that you do not actually need the consent of your former spouse to get a divorce?

In New South Wales, you can apply for a divorce together (with your former spouse) or by yourself (sole application). There are different obligations in each case particularly with respect to service so be sure to get legal advice if you are unsure. While your spouse does not need to consent to the Divorce Application, they can object to the divorce by filing a Response to Divorce Application if;

  • the separation period for you and your spouse is less than 12 months. For example, if you separated on 15 May 2019 you cannot file for a divorce until 16 May 2020;
  • there was not a valid marriage; and
  • the Court does not have jurisdiction to hear the Application.

2/ Did you know that getting a divorce is not the same as a property settlement nor does a divorce bar your spouse from accessing your property or assets you accrue post separation?

This equally applies to parenting matters. A divorce is merely the legal recognition that the marriage is over. A property settlement can occur any time after separation whether you are divorced or not. What many people do not know is that there is a 12-month time limit to commence property proceedings or make an application for property orders after the Divorce Order comes into effect.

Separating couples often believe that the property pool for distribution is the property they had at the date of separation. This is not correct. When making property orders, the Court must consider the property as at the date of the hearing not the date of separation. This means that any property you accrue after separation or divorce will form part of the property pool to be distributed. For more information on how post separation assets are dealt with, see the below articles

3/ Did you know Australia is a no-fault jurisdiction?

This means that the Court does not consider which partner was at fault in a marriage. All that is required is that the marriage has broken down irretrievably and there is no reasonable likelihood of the two of you resuming married life. This is evidenced by a married couple living separately and apart for 12 months.

4/ Did you know that you may remain living under the same roof and still get a divorce?

If you have been separated for more than 12 months whilst living under the same roof, then you may still apply for a divorce. You will need to satisfy the Court that you have in fact been separated under one roof for more than 12 months. You will need to provide the Court with additional information when filing your Application for Divorce generally in the form of an Affidavit. The Court will want to know about matters such as why you continued living under one roof, what your living arrangements were while under one roof and whether you have advised any government departments of your separation. It is best to get your lawyer to assist you with this to avoid any delays in your divorce.

5/ Did you know that you are not always required to attend the Divorce Hearing?

You are not required to attend the Divorce Hearing if there are no children under the age of 18 or if you filed a Joint Application. If you are applying for an Order for substituted service or a dispensation of service in the circumstances where you cannot find your former spouse to serve the Application for Divorce and/or supporting documents, then it is best attend the Divorce Hearing. It is also sensible to attend if you are required to provide additional affidavit material to explain circumstances such as living separated under the same roof or where you have been married for less than two years and/or other situations which may impact on the outcome of your matter.

For further information please contact:

Caroline Bass, Partner
Phone: +61 2 9233 5544
Email: cxb@swaab.com.au

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.