Common Legal Questions

Dealing With Divorce

The Family Law Act, 1975 established the no fault divorce system which operates in Australia today. This means that a court will not consider which of the parties was at fault for the breakdown of the relationship, if any. Any accusations as to adultery, violence or abandonment are no longer relevant. The only ground for divorce is that the marriage has broken down irretrievably.

An application for divorce can be filed in the Federal Circuit Court of Australia. It can be lodged on behalf of one or both parties.

A party or parties can apply for a divorce after 12 months of separation. This means 12 months of continuous separation and the parties must not continue to live as man and wife during that period. It must also be established that there is no likelihood of reconciliation during that time.

There must also be a connection with Australia for the purpose of making an application to divorce in Australia. Either of the parties will need to be an Australian citizen by birth or otherwise. Alternatively Australia must be regarded as home by one of the parties with an intention to live in Australia indefinitely or provide evidence that one of parties has lived in Australia for at least 12 months prior to filing of the application.

Living separate for 12 months does not mean that you cannot live under the same roof or that one of the parties cannot continue to provide the other with some household services. There may however be evidentiary difficulties in establishing separation if the parties continued to live together under the one roof and the provision of household services is more than just nominal.

Where the couple has been married for less than two years the court will require the parties to participate in counselling with a view to reconciliation before the application for divorce can be dealt with. There is however some exceptions to this rule, if, for example, there has been violence or abuse in the relationship.

Also in dealing with a divorce the court will take into account the arrangements that have been proposed for any child or children of the marriage who is under the age of 18.

Once a divorce is granted it will become final one month and one day after the order has been made.

It is also important to note that there is only 12 months from the date the divorce takes effect for there to be any application by a party for property or financial or spousal maintenance. An extension to this limitation period can be granted in exceptional circumstances.

 

Brydens Lawyers has for over 40 years been providing expert legal advice and representation in all family law matters. For all your family law needs contact Brydens Lawyers today on 1800 848 848 or at www.brydens.com.au.

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