Parties must have separated for at least one year before filing for divorce. De facto partners must file for property settlement within two years of their separation.
Family and relationships are protected by the Family Law Act 1975 (FLA). The FLA has set down the rules to follow in issues related to family and relationships. Aside from marriage, the FLA recognizes and protects de facto relationships.
The children who are products of a marriage and de facto relationship are likewise protected by the law. It is the FLA that sets certain limits during which actions can be instituted or filed in court in relation to divorce, separation, parenting arrangements, child support, property settlement, spouse maintenance, financial agreements and all related matters.
There is no requirement set by the law for the duration of a marriage before parties can file for divorce. However, the applicant or his spouse must have lived in Australia for at least 12 months before the application. Also, the spouses must have at least 12 months of separation before filing the divorce.
If it is a sole application for divorce, the documents must be served at least 28 days before the court hearing to the other spouse if he is located in Australia. If the other spouse is in another country, the divorce documents must be served to him at least 42 days before the court hearing. Not all divorce goes uncontested.
If a party wants to object to the divorce or make corrections, he must file a response to divorce and serve this to the applicant within 28 days from the time the divorce documents have been served if the applicant is within Australia. If the applicant is found overseas, the Response to Divorce must be served within 42 days from receipt of the divorce documents.
A party can remarry one month and one day after the court grants the divorce. It would be prudent to wait before making plans for a new wedding. A property settlement action must be filed within 12 months after the divorce became final.
Section 4AA of the FLA defines a de facto relationship. A de facto partner may apply for a financial order and property settlement within two years from the time the partners separated. Beyond the period of two years, an application for property settlement will only be allowed if undue hardship would be caused to a child of the relationship, a party has contributed substantially to the relationship or if the party has no other means of financial support after the requisite two years.
In case a case is lost in a lower court and the party would like to appeal the order, it would be good to remember that a Notice of Appeal must be filed not later than 28 days from the time the order was made.
The Notice of Appeal must be filed with the Family Court registry that is nearest to the court of summary jurisdiction but for all other appeals, it must be filed with the regional appeals registry. The next step in the appeal process is that the draft index to appeal books must be filed within 28 days from filing the Notice of Appeal.