In order to apply for divorce, you must have first been separated from your spouse for 12 months.
This is sufficient to demonstrate to the court that the marriage has broken down irretrievably.
The Family Law Act 1975 (“the Act”)
PROVIDES THAT IT DOES NOT MATTER IF ONLY ONE PARTY INSTIGATED THE SEPARATION, NOR IF THE SEPARATION OCCURS WHILST YOU ARE LIVING UNDER THE ONE ROOF.
It is also irrelevant as to why you are separating, or “who is at fault”.
You simply need one party to have an intention to sever or not resume the marital relationship and to act on that intention. Where one party alone considers the relationship has come to an end they must communicate that attitude to the other party.
Should your marriage have lasted two years or less, you will need to seek a certificate from a counsellor prior to apply for divorce which confirms that you and your spouse have considered a reconciliation with the assistance of an approved family and child counsellor.
These days, most people take advantage of the the Commonwealth Courts Portal’s user friendly “do-it-yourself” online divorce kits.
However, should you require assistance with the preparation of your divorce application, we are more than happy to assist.
Divorce orders can be applied for by one party or both parties.
If you have children under the age of 18, you will need to appear at your divorce hearing, unless the application is made on a joint basis.
Once the court grants your divorce, the divorce order will issue one month later, at which time the marriage will be terminated.
Impact Of Divorce Order On Other Aspects Of Your Settlement – Limitation Periods
In the event that you fail to formalise your property dispute by way of consent orders or fail to initiate proceedings in the Family Court or the Federal Circuit Court within 12 months from the date that your divorce order issues, you will be unable to apply to the court for spousal maintenance, or for a distribution or adjustment of property interests between you and your former spouse, without the leave of the court.
Leave is only granted in very specific and limited circumstances. It is often costly to seek the leave of the court and it should not be considered that leave will ever be granted other than in exceptional circumstances.
Should leave not be granted to proceed out of time, the assets, liabilities and superannuation interests of the parties will remain as they are held at present.
That is, for example, should you not proceed within the periods required by the Act, assets owned by the husband will remain those of the husband, and assets owned by the wife will remain those of the wife.
This could be very costly to you, if, for example, all of the superannuation or real estate is held by one party, or if one of the parties carries substantial debt in their name alone.
It is therefore crucial that you take note of the limitation period which applies once you have divorced so that you do not lose the opportunity to seek the relief of the court should that be required.
It is also recommended that you give consideration to your will and your nominated superannuation beneficiaries when finalising your divorce and property matters.