There is sometimes confusion around what a divorce is and what this process involves. A “divorce” is the formal dissolution of your marriage. Divorce does not include the division of assets or arrangements relating to care for your children.
Below are some common questions and answers on divorce.
When can I apply for a divorce?
To apply to the Court for a divorce, you must have been separated from your spouse for at least 12 months.
Furthermore, the only ground for a divorce to be granted in Australia is that the marriage has broken down irretrievably. This means that there is no reasonable likelihood of reconciliation between you and your spouse. 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 can apply for a divorce.
When are we regarded as separated?
There must be some communication by you or your spouse, by words or actions, of your intention to separate. One person moving out of the former matrimonial home is a common example of communication of separation.
Sometimes the Court will grant a divorce where you and your spouse continue to live in the same household, but you need to provide evidence from an independent witness 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. However, 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. Hence, 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.
In conclusion, if you are going through a separation, the best thing you can do is seek early advice from a lawyer about your particular situation.