How soon can I get a divorce?

Hello everyone,

My apologies for the lack of recent blogs I was on leave in February and March.

I have been asked by a number of clients recently "how soon can I get a divorce"?

The answer is actually very simple - under the Family Law Act there is only one ground for divorce, that is that your marriage has broken down beyond repair.

To prove the marriage is beyond repair you must prove a separation of no less than 12 months. For the purpose of calculating the period of separation, however, you can add together periods before and after a single reconciliation, provided that the reconciliation period was less than three months.

Your 12 month period of separation can incur even though you are both living under the one roof, provided you are living separate lives and to the outside world you are regard as separated.  The court will require an independent witness to give evidence that they were aware you were living apart under the one roof.  I usually suggest to clients if they are living as if they were in a share house, so not jointly socializing or cooking for each other etc then the court will be satisfied.

It does not matter which party files the application and pays the $800.00 filing fee and if things are agreed parties often file a joint application.  The court must be satisfied:-

• you or your spouse is an Australian citizen, ordinary resident or that one of you has been living in Australia for the last 12 months
• you were married (a photocopy of your Marriage Certificate is required and if you were married in a non-English speaking country you will need to get this formally translated); 
• you separated at least 12 months ago; and
• there is no likelihood of you and your spouse reconciling.

The last two conditions are met if you swear the divorce application itself.

In addition if there are children under the age of 18 then your application for divorce must include information about the arrangements for the care, welfare and development of these children. The Court must declare that it is satisfied that proper arrangements have been made for the children's welfare.

Applications are usually dealt with 6-8 weeks after they are filed.  Unless the application is a joint application, a copy of the application must be served on your former spouse no less than 28 clear days before the hearing date by any adult except the applicant, and an affidavit of service must be filed to prove service.

If there are children involved then the applicant for the divorce or their lawyer must attend at the hearing.

The divorce becomes final one month after the hearing and a divorce certificate issues.  Until you have the certificate you will not be able to remarry.

 As always please feel free to comment on this or any other of my blogs.  I would also be happy to respond to any questions you may have on this topic.

If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on (03) 9613 6555

How long will this take?

Hello everyone

Happy New Year

Many of my clients get frustrated by the length of time it takes to resolve their Family Law property matter.  I am often asked "how long will all of this take?" or "this is simple why can't we get it done by the end of the month?"  Unfortunately unless both parties are willing to be reasonable it may take months, if not years, to negotiate arrangements for a financial settlement.

There is lengthy Court delays to have matters determined, with matters taking on average between 18 months and 2 years to resolve if a trial is required, but in my practice many delays are not due to court lists, but instead are as a result of one party not responding to the reasonable requests of the other to negotiate.

There are many reasons for this, some people simply do not want to accept their relationship is over, others hope that if they ignore letters the other party will simply give up and some people simply want to annoy their ex-spouse.

I often tell my clients that I cannot force the other side to negotiate and that we either have to wait until the other side is ready to exchange documents or respond to our offers, or we have to go to court.

There is a positive obligation on both parties to exchange documents and attempt to resolve matters before going to court, but you cannot negotiate with someone who refuses to come to the bargaining table.

Many clients do not want to go to court, until they understand that for property only matters, the first two dates at court are conferences specifically designed to try and force negotiations.

If negotiations are not working or information is not being exchanged, then I recommend issuing an Application for property settlement as soon as possible.  At the very least, filing an Application will provide a timetable and will force people to file documents, exchange financial information and to be in the one place at the one time to attempt negotiations.

Fortunately, in my experience, most property settlement matters settle early in the court process, and for that reason parties should not be afraid of going to court, if the other side is delaying a resolution of the matter, because there is no other way to force negotiations.  Of course if the matter does not resolve in the conference phase of proceedings you are already in the court list and can continue to try and negotiate while waiting for a trial.

As always please feel free to comment on this or any other of my blogs.  I would also be happy to respond to any questions you may have on this topic.

If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on (03) 9613 6555