Divorce is the legal and official ending of a marriage. Being married to a person affects your legal rights and responsibilities regarding finances, wills and estates.
It is necessary to get a divorce if you wish to remarry.
In order to apply for a divorce in Australia, you or your spouse must:
- Be an Australian citizen; or
- Reside in Australia; or
- Usually reside in Australia and have resided in Australia for at least 12 months prior to the divorce application; and
- Have been separated for a period of 12 months.
It is best to seek legal advice from a Sunshine Coast family lawyer prior to applying for a divorce.
What are Separation and Divorce?
Separation occurs when a couple stops living together as a couple.
At least one person in the relationship must decide to separate, act on the decision to separate and inform the other person.
Both partners do not have to agree to separate. Separation for at least 12 months is necessary to prove that the marriage has ‘irretrievably broken down.’
When a couple separates, one person generally decides to move out.
However, you can live in the same house and still be separated. This is known as ‘separation under one roof’.
Where two ex-spouses have been living under the same roof for any stage of the mandatory 12 month separation period, the divorce application must be filed with an affidavit.
This is a written statement providing evidence of the relationship’s breakdown to prove the separation to the court.
If the application for divorce is joint, there must be an affidavit from each party to the relationship.
On the other hand, if only one partner is applying for the divorce, an independent person such as a friend or family member must also provide evidence of the relationship’s breakdown via affidavit.
While no single factor is conclusive, the court may consider whether the couple are still sleeping in the same bed, engage in sexual activity, have designated areas in the fridge and cupboard, have scheduled times to use certain areas of the house (for example, the lounge room), share money/bank accounts and whether the couple presents themselves as separated to their family and friends.
Divorce after Short Marriage
If you have been married for less than two years, it is a requirement that you and your partner attend counselling before getting a divorce.
There is an exception for special circumstances. It is possible to get a divorce even if your partner refuses to attend counselling.
If this applies to you, seek legal advice.
How do I legally separate?
Separation cannot be legally recognised by the court or government.
However there are some steps that may help prove the separation to the court.
If children are involved, there should be proper arrangements in place. Furthermore, organisations such as Centrelink should be notified of the separation (if applicable).
Separating financial affairs with your spouse and altering your will are other steps that evidence separation.
What happens if we get back together for a short period?
Prior to a divorce, you must be separated from your partner for a period of 12 months.
You and your spouse can get back together for up to 3 months without re-starting the 12-month period again.
Thus, if you reconcile with your spouse for 4 months, but then decide to separate again, the 12 month separation period will reset.
What happens to our children?
The court will ensure proper parenting arrangements are in place prior to permitting the divorce.
If the divorce is not civil, a parenting order may be most appropriate.
In this case, the court will consider what is in the child’s best interests. There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility – meaning that both parents have a say in major decisions that affect the child’s life.
Notably, equal shared parental responsibility does not equate to equal parenting time.
How do I apply for a divorce?
You need to apply to the Federal Circuit Court for a divorce.
To make this application you must complete and file the Application for Divorce form.
This may be done online and will involve a court filing fee which may be reduced where financial hardship has been demonstrated.
In certain circumstances you may need to attend court.
Court attendance is only required if the application is filed by one party to the relationship (‘sole application’) or if the couple has a child under the age of 18.
Generally, a divorce order will come into effect one month and one day after the court order is made.
For more information or help with your divorce application, fill in your details here to be contacted by one of our trusted Sunshine Coast family law solicitors for free.