An application for divorce is filed in the Federal Circuit Court
Grounds for a Divorce
There is just one reason needed for a divorce. The parties, for no less than 12 months, must have been living apart from each other from the application date. If the two parties have both been residing under the same roof but living separate lives the person seeking a divorce must submit an affidavit and also a witness describing the circumstances surrounding the separation.
Jurisdiction - The court only has the power to grant a divorce if either party has one of the following attributes:
- The person who is requesting a divorce must have been separated for at least 12 months even though this can take place under the same roof.
- The two parties must agree on the date of separation.
- The ages of any children must be confirmed
- Confirmation must be provided concerning the marriage length
- If the marriage is less than 2 years from the divorce application date counselling must take place first before a divorce can take place
- A marriage certificate is required and if it is not, one will need to be ordered.
- Citizenship papers or an Australian passport is required if birth took place overseas.
Before the date of the hearing, the other party may file a response or an affidavit. If there are no children under 18 years but the other party has filed a response, the lawyer must make sure his or her client attends the hearing.
The fees outlined by the Family Law Act will be affected it the lawyer and the divorce applicant both have to attend the hearing.
Property Proceedings and Divorce
After the granting of divorce, there is a limited period of 12 months for applications to be filed for interim or final property orders and spousal maintenance orders. If there is property to consider then proceedings related to the property should be started before the granting of the divorce due to the time limitations.
Before the Date of the Hearing
The lawyer should confirm with the divorce applicant if any circumstances have changed since the divorce application was filed. Questions might be put at the hearing. Also, proper arrangements for children should be confirmed otherwise the hearing may be adjourned by the court until a family report is presented.
The court has to be satisfied that the children are being cared for under “proper arrangements” meaning suitable but not necessarily perfect. A grant of divorce can be refused based on arrangements for children.
If the separation has taken place under the same roof, the appointed lawyer must ensure affidavits have been prepared that offer evidence to this effect from other parties. Important points are that the parties involved in the divorce did not take part in sharing lives such as meals, beds/rooms, communication and sharing household tasks.
The hearing will also want to know how the children were cared for when sharing under one roof took place and if the change in circumstances were reported to any specific government department if any benefits were involved.
Cohabitation vs Reconciliation
Cohabitation taking place during separation will interfere with the 12 months required separation period for grant of divorce. A 2nd separation taking place within three months of cohabitation taking place will not interrupt the 12 months separation period needed before a divorce application is filed. If the party, however, remains for four months, then separation occurs again, the 12-months will then re-commence.
Following the Granting of a Divorce
There are some parties who are so keen to get divorced and then re-marry that a second wedding has been planned before the granting of the divorce. Timeframes for divorce are predictable but if the former spouse objects to the divorce or some other technical issue arises then there could be a delay in the timing of the divorce date.
A court could extend the timeframe for a divorce order to be made final if an appeal is possibles. 55(2) (a) Family Law Act 1975. A divorce normally becomes final 1 month and 1 day following the order to grant a divorce in court. A marriage celebrant has to view the Certificate of Divorce before a further wedding can happen.
Updating a Will
The updating of a will become maybe necessary once the divorce has been finalised.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.