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
