“I want a Divorce!!”
Divorce is the process that legally severs your relationship to your spouse and allows you to re-marry.
In Australia it is illegal to be married to more than one person at a time. You can be separated from your husband or wife and enter into other relationships with other people, however you cannot get remarried until you have obtained a Divorce.
In Australia we have a no fault system regarding Divorce, so gone are the days of hiring a private investigator to take sneaky photos of the spouse liaising with another person so you can trundle off to Court alleging adultery.
Given that it is a no fault system, if your spouse was to engage in another relationship, while still in a married relationship with you, the Court does not penalise that person. As an example, the cheating person will not receive less of the asset pool because “they cheated!!”.
You should also note that obtaining a Divorce is separate from dividing the assets, which is known as a property settlement.
In order for the Court to grant a Divorce it must be satisfied of the following:
- That you were legally married;
- That at least one party is living in Australia;
- That the marriage has irretrievably broken down (separated for 12 months);
- That proper arrangements have been made for any children under the age of 18 years; and
- In the event of a Sole Application, the other party was properly served with the Application.
To apply for a Divorce you must be separated for 12 months, one party must communicate to the other party the intention to separate and this can be by verbal or written communication. If you are separated less than 12 months then you must attempt relationship counselling and produce a certificate to the court confirming you have done so.
Parties can be separated under the same roof during that 12 months, however the Court will need to be provided with evidence showing that you were living separate lives even though you are living in the same house. This means that you no longer cook or clean for each other, your finances are separate, you sleep in separate rooms and you no longer socialise as a couple.
When making an Application for Divorce, this can be done by yourself or jointly with your spouse. If there are no children of the marriage under the age of 18 years and you and your spouse make a joint Application, then neither party is required to attend the Divorce Hearing. If, however, you have children under the age of 18 years, regardless of whether or not it is a joint Application, then at least one of the parties is required to attend the hearing to ensure proper arrangements have been made for the children.
In the event you are making a Sole Application for Divorce then you must arrange for the Application to be personally served on the other party. In the event you cannot locate the other party, the Court, in some circumstances can dispense with this requirement. Once personal service has been affected you must provide evidence to the Court confirming that this has occurred. You cannot personally serve the other party, you must arrange a third party to do so.
Once the Divorce is granted it will come into effect one month and one day from the date the Order was made, you are then free to remarry if you choose. You have 12 months from the date of the Divorce Order being final to apply for spouse maintenance.
Alison Brown
Senior Associate
Koffels Solicitors & Barristers