The concept of “divorce” is sometimes a misleading one. It is often thought that you have to obtain a divorce when you immediately separate from your spouse. It is not however an actual requirement unless you wish to remarry. Notwithstanding this, staying legally married may affect your legal or financial obligations and legal advice is always best if you are unsure what to do.
In simple terms, to achieve a divorce order it must be shown that the marriage has “irretrievably broken down” and there is no likelihood of the relationship recommencing. This is presumed demonstrated in the eyes of the court when you and your spouse have been separated for a continuous period of 12 months or more.
It is often the case that spouses may be separated but remain living in the same home during the 12 months before applying for a divorce. This is referred to as “separation under one roof” and requires extra proof to be provided to the court if this is a circumstance of your application. Affidavits in support of your claim that you have been separated but living together will need to be provided to highlight the changes that have occurred in the marriage during the “separation under one roof” period i.e. a change in the sleeping arrangements, decline in family outings, a division of finances, etc.
Should you and your spouse have been married for less than 2 years also, it is a requirement that you attend counselling and receive a counselling certificate or alternatively, obtain permission from the court to apply for a divorce order without the certificate. The two-year period is calculated from the date of the marriage to the date of applying to the court for a divorce.
Further prerequisites before making a divorce application include:
- Being an Australian citizen;
- Residing in Australia and considering Australia as your permanent home; and
- Ordinarily living in Australia and having done so for the 12 months prior to making the application.
These requirements are also applicable if you have been married overseas.
The actual divorce application can be done jointly by the parties or solely, by either one and has a filing fee attached to it, with such fees being set by Federal Government Regulations. You may be eligible for reduced fees if you hold certain concession cards or are experiencing financial hardship.
Your legal representative can help explain your rights and responsibilities before applying for a divorce. At HLC we can assist in completing either the joint or sole application on your behalf and confirming all requirements are met before finalising and lodging your application and ensuring your divorce order is obtained by the court.