The end of a marriage can be traumatic, even when both parties have come to the conclusion that divorce is the best choice. If you are contemplating divorce, you should know that you are not alone with almost half of Australian marriages ending in divorce. Should you find yourself in this situation, you can trust the advice and guidance of an experienced divorce lawyer, like those at Sydney’s Owen Hodge Lawyers. People often confuse a divorce with the process of negotiating how the parties’ assets and liabilities will be divided. However, divorce is a straightforward process, and can be done either before, after or during negotiations regarding the parties’ property settlement providing the following requirements are met:
- Evidence of a valid marriage;
- At least one party to the marriage must be an Australian citizen, resident in Australia or domiciled in Australia;
- Irretrievable breakdown of the parties’ marriage evidenced by at least 12 months of separation; and
- The party making the application must serve the other party with a copy of the application in accordance with the Family Law Rules.
A Valid Marriage
A valid marriage is usually evidenced by attaching a copy of your marriage certificate to the Application for Divorce. If you were married in Australia and have lost or misplaced your marriage certificate, you can easily obtain a copy by contacting your local Births, Deaths and Marriages registry. If the parties were married overseas and for one reason or another no longer have a copy of their marriage certificate, proving a valid marriage exists may be more difficult. In these cases, the party making the application may need to file a short statement sworn by them describing the details of their marriage and why they cannot obtain a copy of the marriage certificate. In addition, if your marriage certificate is in another language, a copy translated by a qualified translator must be attached to the Application for Divorce.
Jurisdiction of Australian Courts
Regardless of which country you were married in, and Australian court can grant a divorce if at least one of the parties fulfils one
of the following criteria:
- Regard Australia as home and intend to live in Australia indefinitely;
- Is an Australian citizen by birth, decent or grant of Australian citizenship; or
- Ordinarily lives in Australia and have lived in Australia for the 12 months immediately prior to the making of the application for divorce.
Irretrievable Breakdown Evidenced by Separation
To prove that a marriage has irretrievably broken down, the Court must be convinced that the parties have been separated for a period of at least 12 months. This simply means that you and your spouse must have been separated for 12 months prior to making an Application for Divorce and the date of separation will be noted on the Application. It is possible to obtain a divorce even if you and your spouse have been living in the same house while separated. However, a written statement from the party who is making the application and
an additional witness, which needs to cover specific issues surrounding the parties’ separation under the one roof, must be filed with the application. Brief periods of reconciliation may not in some circumstances break the requisite 12 month period of separation. If you find yourself in this situation, we urge you to seek the advice of one of our family lawyers who can give you advice specific to your circumstances.
Provision for Minor Children
Where there are children of the marriage under the age of 18, a court needs to be satisfied that there are proper arrangements in place in respect of their care, welfare and development. This does not necessarily mean that parenting arrangements, including custody, visitation and support, need to be finalized.
Service of the Application for Divorce
The Court must be satisfied that the other party to the divorce has been served with a copy of the application at least 28 days prior to the divorce hearing. If he or she lives overseas, service must occur at least 42 days prior to the date of the divorce hearing. There are very specific documents that need to be filed in order to satisfy the court that the other party has been properly served. At Owen Hodge, our Sydney-based family lawyers
organize service of the application on your spouse as well as the preparation and filing of the documents evidencing service on your behalf. If there is an issue with locating your spouse to serve the application, you may still be able to make an Application for Divorce provided you file a written statement with your application detailing the difficulty you are experiencing in locating your spouse and the attempts you have made to do so. It is important to note that from the date the divorce order is made, the parties have 12 months to make an application to the court for orders in respect of the division of the parties’ assets if it has not already been finalized.
Marriages of less than 2 years
If you are seeking a divorce and you have been married for less than two years then in addition to the above requirements both parties must participate in marriage counseling and file a certificate from the counselor with your application evidencing the parties attempt at reconciliation. If you are not able to attend counseling with your spouse, it may still be possible for you to obtain a divorce and we would encourage you to seek our advice in relation to your situation. Owen Hodge Lawyers can prepare all the required Federal Circuit Court divorce documentation for you and attend your divorce hearing. This will help ensure that the emotional and financial impact of this difficult time on you is minimised. Owen Hodge’s Sydney-based divorce lawyers would be happy to assist you with your divorce or other family law matters so please contact us at 1800 770 780. We look forward to hearing from you.
Family Law Consultations In Wollongong and the Illawarra
(By Appointment Only)
We offer professional and discreet family law face-to-face consultations in Wollongong and the Illawarra at a location convenient to you. To arrange a personal consultation with one of our experienced family lawyers in Wollongong, please contact Owen Hodge Lawyers on 1800 770 780 or contact us via firstname.lastname@example.org