Following the breakdown of a marriage, either party, or both parties jointly, may apply to the Federal Circuit and Family Court of Australia for a divorce, provided the relevant legal requirements are satisfied.
A divorce is the legal process that formally ends a marriage in Australia. Arnold Hills can help you understand the requirements, guide you through the application process and explain any legal consequences that may arise once a divorce order takes effect.
Divorce
If your marriage has broken down and you meet the necessary legal requirements, we can assist you with preparing and filing a divorce application in the Federal Circuit and Family Court of Australia.
Although the divorce process is often straightforward, obtaining a divorce can have important legal consequences. It is therefore advisable to obtain legal advice before making an application to ensure you understand your rights and obligations, including the time limits that may apply to property settlement and spousal maintenance applications once your divorce becomes final.
Applying for a divorce in Australia
A divorce application can be made by both parties together (a joint application) or by one party alone (a sole application). If a joint application is made, both parties participate in the application and there is no requirement to formally serve the divorce application on the other party. A joint application process is often quicker and more cost-effective.
In Australia, there is no statutory deadline requiring a person to apply for a divorce within a particular period after separation. However, you must generally have been separated for at least 12 months and one day before filing a divorce application.
You may apply for a divorce if you and your spouse lived in the same home during some or all of the separation period. This is commonly referred to as ‘separation under one roof’. In these circumstances, evidence must be provided to the court to demonstrate that the marital relationship had ended despite continuing to live at the same address.
There are other legal requirements for obtaining a divorce in Australia. Depending on your circumstances, additional requirements may apply, including where you were married overseas, your marriage certificate is not in English, your spouse cannot be located, or you have been separated while living under the same roof. It is therefore prudent to obtain legal advice from a family lawyer prior to filing a divorce application.
A divorce application is dealt with separately from property settlement, spousal maintenance or parenting arrangements. The granting of a divorce does not determine how property will be divided, whether spousal maintenance will be payable or what parenting arrangements will apply. You do not need to wait until you are divorced to resolve parenting, property or financial matters. These matters may be dealt with before, during or after the divorce process, subject to any applicable time limits.
Children and divorce
If you have children of the marriage under the age of 18, the court must consider whether proper arrangements have been made for their care, welfare and development or whether there are circumstances in which the divorce should nevertheless take effect. Therefore, your divorce application must include information about the children’s current circumstances. This may include information about their housing, education, health, financial support and how they spend time and communicate with each parent.
Parenting matters do not need to be finalised, and parenting orders do not need to be in place, at the time of your divorce application. However, you must provide sufficient information about your children’s current circumstances and the arrangements in place for their care.
For more information see our parenting and children’s webpage.
Property and divorce
You can resolve your property and financial matters at any time after separation and do not need to wait until you are divorced.
However, obtaining a divorce order is an important legal milestone because it triggers certain limitation periods under the Act. For married couples, any application for property settlement or spousal maintenance must generally be commenced within 12 months after a divorce order becomes final.
After that period, property or maintenance proceedings may generally only be commenced with the leave of the court or with the consent of the parties. Obtaining leave is not automatic and specific legal requirements must be satisfied. It is therefore important to obtain legal advice promptly before the limitation period expires.
For more information see our property and financial settlement webpage.
Speak with Arnold Hills, divorce lawyers in the Hills District and Sydney
If you are separated and considering divorce, Arnold Hills can assist you with preparing and filing your divorce application. We will advise you on the legal requirements and process for obtaining a divorce and help you understand any consequences your divorce may have for your overall family law matter, including property settlement, parenting arrangements and spousal maintenance.
We can also help where your divorce involves separation under one roof, difficulties serving your spouse, an overseas marriage or spouse, or other circumstances requiring additional evidence or procedural steps.
Contact Arnold Hills today to arrange a confidential consultation with our experienced divorce lawyers serving clients throughout the Hills District, including Castle Hill, Norwest, Rouse Hill and across Sydney.
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