answers about divorce
1. when can i apply?
You have to be separated for 12 months or more before you can apply for a divorce.
You can get back together for one period of up to 3 months before the 12 months must begin to run again.
You can apply whenever you want after the 12 months of separation.
However, be aware that you only have a further 12 months from the date your divorce becomes absolute to apply for a property settlement if you haven't done so already.
You submit an application and serve it on your spouse.
If you both agree on getting a divorce you can make a joint application and share the cost.
You can apply to the Family Court or to the Federal Circuit's Court.
We would suggest that you apply to the Federal Magistrate's Court simply because the application cost is half of that in the Family Court.
If you have no children you and your spouse do not need to attend Court for the divorce hearing.
If you are the applicant and you have children you will need to attend Court.
The hearing is usually very quick. In cases where there are additional circumstances to consider, such as jurisdictional problems or dissatisfaction with the arrangements which have been made for the children it can take longer.
If you have children the Court will have to be satisfied that adequate arrangements have been put in place for the children before the divorce will be granted
You must be granted your Decree Absolute before you can get married again.
The Court usually grants your Decree Nisi at the hearing and a month and one day after that date you will receive your Decree Absolute.
After you have your Decree Absolute you will need to give the required notice of your new marriage to the government before you can go ahead.
Your spouse doesn't have to agree to the divorce they just have to be served with the documents and that service acknowledged or proved.
Your spouse cannot stop the divorce unless you haven't met one of the basic criteria such as 12 months separation.
If your marriage was recognised overseas and does not offend Australian public policy it is recognised in Australia and you can be divorced here provided that one of you:
- Regards Australia as your home;
- Intends to live indefinitely in Australia;
- Is an Australian citizen; and
- Ordinarily lives in Australia and has lived in Australia for 12 months immediately before the application for divorce.
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.