The breakdown of a relationship is never easy, there are often many steps involved when there is a breakdown of a relationship including property issues, children and divorce. In Australia, a divorce may be obtained in either the Family Court of Australia (if you reside in Western Australia) or in the Federal Circuit Court of Australia.
The Family Law Act 1975 established the principle of ‘no-fault divorce’ meaning that the Court does not consider why the marriage ended, nor is a reason required to be given. The only ground for divorce is that the marriage has irretrievably broken down with no likelihood of reconciliation. This is proven by the requirement that the parties must have been separated for at least 12 months before filing a divorce application
Divorces are a formal end to a marriage. When parties first separate, there is nothing that needs to be done formally for the purposes of a divorce. To apply for divorce in Australia, the parties need to have effected a final separation 12 months preceding the filing of the divorce application, there must be no chance of reconciliation and certain legal criteria needs to be met, these being:
- That either the person applying for the divorce or their spouse must regard Australia as their home and intend to live in Australia; or
- That either the person applying for the divorce or their spouse are an Australian citizen by birth, descent or by a grant of Australia Citizenship; or
- Ordinarily live in Australia and have so for 12 months immediately before the filing of the divorce.
SEPARATED UNDER THE ONE ROOF
In today’s current property market, it is understandable that people can’t always immediately move out of the property due to their finances or the fact that they wish to remain living in the former matrimonial home to care for their children. This does not preclude someone from applying for a divorce, however does mean that additional evidence will need to be put before the Court to satisfy that the parties were indeed separated and leading separate lives notwithstanding that they occupied the same roof.
MARRIAGES OF LESS THAN TWO YEARS
Generally, unless there are extenuating circumstances, if parties have been married for less than two years, they must provide additional information and undertake counselling and file a counselling certificate. Counselling can be arranged through the Family Relationship Advice Line. If a party is fearful of their safety or are genuinely unable to attend counselling due to one party being missing or overseas, then an affidavit will need to be filed with the Court.
Location weddings are becoming more and more popular with many people choosing to go overseas to enjoy their wedding. Just because a wedding occurred overseas, doesn’t mean that the divorce cannot be filed in Australia. As stated above, if the party applying for divorce or the spouse regards Australia as their home and intend to live here indefinitely or are an Australian citizen by birth or descent, are an Australia citizen by grant and ordinarily live in Australia and have done so for 12 months immediately before filing for divorce, then a divorce can be applied for in Australia.
A copy of the marriage certificate will be required as with domestic weddings. In the event that this certificate is not written in English, the party applying will need an English translation of it and an affidavit from the translator.
If the divorce was applied for overseas, Australia will recognise the divorce if it was effected in accordance with the laws of that country.
OPPOSING A DIVORCE APPLICATION
If parties have been separated for more than 12 months, the opportunity to oppose the divorce application is dramatically reduced. A party cannot object to a divorce application merely on the basis that they do not want to be divorced. There are two main reasons that a divorce application can be opposed to, being:
- The separation has not been for a period of 12 months or more as alleged in the application; or
- That the Court does not have jurisdiction to deal with the divorce application.
If a divorce is opposed to on the above grounds a Response to Divorce document will need to be filed with the Court outlining the reasons for the opposition and the orders sought and the opposing party will need to be present at Court when the Divorce is listed.
PROPERTY AND CHILDREN ISSUES
Whilst a party cannot apply for a divorce unless they have been separated for a period of 12 months or more, parties are able to begin negotiations in relation to property issues and the arrangements for their children at any time following their separation. Due to the length of time that parties must wait before they can file for a divorce, many issues pertaining to children and property are resolved prior to the divorce application being filed.
Once a divorce becomes final, parties must begin property or spousal maintenance proceedings within 12 months. If property proceedings are brought ‘out of time’ the party bringing those proceedings will require leave from the Court and must show that they will suffer hardship if such leave is not granted.
In regards to children, the Court must be satisfied that there are proper arrangements for the children in place. This does not mean that those arrangements must be formal or that there is no dispute, rather the Court must be satisfied that the children are being cared and provided for appropriately.