How to Get a Divorce

When parties finally decide to end a marriage, to be recognised as no longer married at law, they must then turn their minds to how to get a Divorce. 

You may apply to the Federal Circuit Court of Australia for a Divorce Order once you and your spouse have gone through a separation period of 12 months. Under Australian family law, since 1975, there is only one ground for divorce: that the marriage has broken down irretrievably. It does not matter why you and your spouse have separated, if your spouse does not want to divorce, or if one of you is perceived as being at fault. The divorce will be granted provided that the legal requirements have been met. 

A Divorce Application can be made by one party, or jointly if the parties agree. There are strict requirements for filing and serving Divorce Application, and further requirements if you and your spouse have lived under the same roof during the 12 months leading up to the application.  

It is important to understand that a divorce legally terminates the marriage, but it does not deal with family law property settlement or child custody issues. 

You can apply for a property settlement at any time after separation. Under the Family Law Act 1975, parties have only 12 months from the date when the divorce becomes final in which to apply to the Court for property settlement. In exceptional circumstances a party can make an application “out of time” by seeking special leave of the Court. Due to this time limit, a Divorce Application is usually made after all property and financial and/or child custody matters have been resolved.

The following legal requirements must be established before the Court can grant a divorce:

1. That the Federal Circuit Court of Australia has jurisdiction.
2. That there is a legal marriage between the parties.
3. That you have been separated for 12 months, the marriage has broken down irretrievably and there is no likelihood of reconciliation.
4. Where there are children of the marriage who are under 18 years of age, that the current arrangements for their care, welfare and development and the proposed future arrangements are property in all the circumstances.
5. Where it is a sole Application for Divorce and not a joint Application , that proper service of Divorce Application has been effected on the other party and they have been given sufficient notice of the Divorce hearing.

Although anyone can make a Divorce Application, without the need or services of lawyer, it is always advisable to seek the help of a Divorce Lawyer to ensure that all the legal requirements have been met, that the Application has been filled in and executed correctly and to the standard expected by the Court, and that delays are avoided due to all the above not being met or satisfied.

Also, not all Divorce Applications are straightforward and complications can arise. Examples of where complication may exist are where there are children to the relationship; it is not a joint application; the parties do not agree on a separation date; time is of the essence (particularly where you wish to remarry); the other party lives overseas; the other party is not contactable; or the parties have been separated but still living together. 

Our divorce lawyers have assisted hundreds of clients with successful divorce applications and we are able to assist you on how to get a Divorce. Contact us to speak to one of our divorce lawyers at your nearest Prime Lawyers office.

We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.