A Divorce is the legal dissolution of a marriage.
In Australia, the Family Law Act 1975 established the no-fault Divorce system. This no-fault Divorce principle means that a Court will not consider who was at fault for the breakdown of the relationship. Any accusations of adultery, violence or abandonment are irrelevant. The only ground for Divorce is that the marriage has broken down irretrievably.
Any application for Divorce is usually filed in the Federal Circuit Court of Australia and the application can either be a sole application where one party to the marriage files the application, or a joint application where both parties file the application together.
An application for Divorce is only available after a 12 month period of separation. This 12 month separation period is to be a continuous period and means more than physical separation where there is no likelihood of reconciliation.
The application can be opposed in circumstances where the Court does not have jurisdiction to deal with the matter or otherwise where the parties to the proceedings have not been separated for more than 12 months.
An application can still be made while the parties are residing under the same roof or if one has provided the other with some household services. It may be difficult to establish that separation has occurred in these circumstances and accordingly the Court will require evidence in support of the application.
In addition to the requirements of a period of 12 months of separation, either you or your spouse will need to be an Australia citizen by birth, decent or otherwise. If that cannot be established, you or your spouse needs to regard Australia as your home, intend to live in Australia indefinitely or otherwise be able to provide evidence that you lived in Australian for at least 12 months prior to the filing of the application.
In instances where a couple has been married for less than 2 years, the Court requires the parties to attend a counselling session with a view to reconciliation. There are exceptions to this requirement if there is a history of violence or abuse or where one party cannot be located.
At a Divorce hearing, the Court will need to consider that proper arrangements have been made for any child of the marriage, or a child from another relationship, or a child who has or was adopted or who is treated as a member of that household, and under the age of 18.
Once a Divorce has been granted the Divorce becomes effective one month and one day after the Order has been made.
Once a Divorce has taken effect, there is only a 12 month period in which to file an application for property/financial and spousal maintenance. An extension to this period may be granted in circumstances where both parties agree to the extension and the parties have the leave of the Court.
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