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Am I eligible to commence divorce proceedings?
Divorce proceedings can be initiated in Australia if either you or your spouse:
- is an Australian citizen;
- is domiciled in Australia; or
- has been ordinarily resident in Australia for the past three years.
For the purposes of family law proceedings in Australia, ‘ordinarily resident’ means that someone has voluntarily chosen to live in Australia for a settled purpose.
If there is a relationship breakdown, you or your spouse may apply for a divorce, either jointly or solely, after 12 months’ of being separated. If there is a reasonable likelihood that you both will recommence living together again, it is unlikely that the Court will make the divorce order.
Once it is established that the you and your spouse are eligible to apply for a divorce, there are an additional three elements that need to be proven to the Court:
- That the marriage has broken down irretrievably;
- That the you and your spouse have lived apart for 12 months; and
- That there is no reasonable likelihood of cohabitation being resumed.
What if my spouse and I attempted to get back together for a short period?
If you and your spouse have recommenced living togetheron one occasion for a period of three months or less, then this short period may be added to the total period of separation. However, if you and your spouse recommence cohabitation for a period more than three months, then the 12 month element will reset. Please note that the cohabitation must have been arranged via agreement.
What if my spouse and I are separated but still live in the same home?
It may be the case that you and your spouse are separated but live in the same home. This is particularly common amongst families with young children. In this situation, you must ensure that you have enough evidence that the relationship has broken down. For instance, that you sleep in a different room from your spouse, that you do not present as a couple in public (amongst your family and friends) and that you both do not intend to resume the relationship.
Is counselling required?
Counselling will be required if you and your spouse have been married for less than two years. In this situation, a certificate that you have attended counselling together must be filed with the divorce application to demonstrate that attempts have been made to resolve any disputes. If you do not attend counselling prior to your divorce application, it is likely that the Court will make an order that you and your spouse seek counselling before any divorce order is made.
When does the divorce take effect?
The divorce will be effective from one month after the date the divorce order has been made by the Court. If you wish to remarry, you may file a notice of intention to marry one month and one day after the divorce order has been made. For instance, if your divorce order is made on 1 January 2024, then your divorce will be effective from 1 February 2024 and you may file an intention to marry on 2 February 2024.
What next?
After your divorce has been finalised, you may wish to make an application for a property settlement so that you can distribute the matrimonial assets. This is very common and can occur within 12 months of the divorce order coming into effect. If you file a property settlement application outside of this time frame, you may apply for the court to extend this period if it can be shown that you will experience hardship if the application is not granted. These arrangements can be made during a mediation session. If an agreement cannot be reached at mediation, the last resort would be to initiate property proceedings with the Court. However, please be aware that litigation can be very costly, timely and exhausting.
If there are children of the relationship, it is also common for parenting matters to be arranged. This can be negotiated by way of mediation. At the end of the mediation process, a parenting plan, which is non-binding, can be made between the parties. Alternatively, you and your spouse may wish to formalise the arrangement as consent orders, which are binding and filed with the Court. Should you and your spouse fail to reach an agreement, parenting proceedings can be initiated with the court.
If you are thinking of making a divorce application, or are unsure of your rights and responsibilities, feel free to contact one of our solicitors at 1800 662 535, or email our team at team@jamesnoblelaw.com.au for more information.
The following resources may be useful:
o https://www.fcfcoa.gov.au/fl/forms/divorce-service-kit
o Marriage Certificate (plus translation if not in English)
• Divorce documents must be filed in Registry
o Filing fee as of 28 March 2024: $1,060 (or may be eligible to apply for reduction in fees -$350)
o https://www.fcfcoa.gov.au/fl/fees/fl-fees
• Documents must then be served properly on other party giving them requisite notice of the hearing date (unless joint application);
• Service time frames:
o If other party in Australia must be served at least 28 days before the hearing;
o If other party overseas must be served 42 days before the hearing date;)
• Service by post or personally;
o http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/forms-and-fees/court-forms/form-topics/Service/kit-divorce-service
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