DIVORCE & SEPARATION

So, you and your partner have separated? There is sometimes confusion around what a divorce is and exactly what this process involves.

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A “divorce” is the formal dissolution of your marriage, and does not include the division of assets or arrangements relating to care for your children.

When can I apply for a divorce?

In order to apply to the Court for a divorce, you must be separated from your spouse for at least 12 months. The only ground for the granting of a divorce in Australia is that the marriage has broken down irretrievably. This means that there is no reasonable likelihood that you and your spouse will reconcile. This is evidenced by the period of 12 months separation. If you have been married for less than 2 years, it is necessary to undergo counselling before you are eligible to apply for a divorce. You can find the Application for Divorce Kit on the Family Courts website.



When are we regarded as legally separated?

There must be some communication to your spouse, by words or actions of your intention to separate. Sometimes the Court will grant a divorce in circumstances where you and your spouse continue to live in the same household, but you need to provide evidence from an independent party about the circumstances of your relationship before and after the separation date.



Can I get a divorce before we sort out our property matters?

Yes you can. You need to be aware that once you are divorced there is a 12 month time limit to apply to the Court for a property settlement and/or spousal maintenance. Only in limited cases will the Court allow you to commence proceedings after this time.



What about the children of the marriage?

If you have children under the age of 18, the Court must be satisfied that there are proper arrangements for the care, welfare and development of the children in place before a divorce is granted.