Setting the ground rules
Separation, divorce, and remarrying can be stressful, but like it or not, your workload or stress are not regarded as reasonable excuses for infringing legal time restrictions.
An application for the granting of a divorce – the official annulment of a marriage – will result in the issue of a divorce order. Under Australian law, it is not legal to remarry until ‘1 month and 1 day’ after the issue of the order. While that seems clear enough, sometimes things don’t go exactly as expected, and fine-tuning a marriage event based on timing assumptions that go right down to the wire can be fraught.
Best laid plans
A Divorce Order will usually take 3 to 4 months from the application, but this should not be used as a basis for planning a wedding, as there are potential derailers of the timeline. These include:
- If it is a sole application for divorce, then the other party must be served the Divorce Application. If they oppose the action, they are required to submit a Response to Divorce within 28 days of being served, or 42 days if served outside Australia, and further, are required to attend the divorce hearing. Difficult circumstances, particularly if there is an acrimonious relationship, may delay proceedings.
- Any children from the marriage must be properly provided for in terms of both care and financial arrangements, and any doubts as to the bona fides of these arrangements will cause the court to delay.
- If the marriage was for less than 2 years, then a course of marriage counseling is required, and a certificate to that effect must be provided.
Registered, or recognised?
Previous overseas marriages cannot be registered in Australia, however, they can be officially recognised provided:
- The marriage was officially recognised and recorded in that country
- Both parties are over 18 years of age, and were over 18 when married
- Neither party was married to another party at the time of the marriage
With proper evidence of such a marriage, steps may be taken to officially annul it. Likewise, if an overseas marriage is not recognised in Australia, then the person has no need to divorce, since under Australian law they are not married.
Viva Las Vegas
Should the ‘1 month and 1 day’ requirement be an issue for a couple, either through unexpected delays or mere inconvenience, it may be tempting to rush off to another place and bypass Australian law. While the stuff of fun movie scripts, it is not a legal solution. Other jurisdictions will have their own requirements for proof of ability to marry, not the least of which will be a Certificate of No Impediment to Marriage (CNI), issued by the Department of Foreign Affairs and Trade (DFAT).
The same requirement applies in Australia, and any person intending to officiate at a wedding will require specific documentation, including the above CNI.
A divorce officially revokes a current will, so estate planning should be factored into any divorce and remarrying plans.
The crime of bigamy – marrying another person when already married – carries with it (if convicted) prison terms of up to 5–7 years in NSW, so it is vital to comply with the relevant laws. It is worth noting that someone marrying while being aware that their intended spouse is already married, is also guilty of a crime.
Professional advice, particularly in more complex circumstances, may well remove unnecessary stress and legal breaches. If you have any questions about this, or any other topic relating to your family law matter, please don’t hesitate to get in touch with us. At Owen Hodge Lawyers we are available to assist with any query or matter you may have.