Separation & Divorce
6. Requirements for Divorce
Authors: Staff Legal Eagle
Firm / Chambers:
Last updated: 17 Sep 2015
- If you are married but separated and decide you want to divorce your spouse then there are steps you need to take to make it legal.
- Before the court will grant a divorce it must be satisfied that:
- there was a valid marriage. You will need to prove this usually with a marriage certificate;
- the relationship has irretrievably broken down meaning the relationship cannot be repaired and there is no prospect of reconciliation;
- any children are being properly cared for;
- you have been separated for a minimum of 12 months; and
- you have been married for 2 years or if you have been married for less than 2 years that you have attended relationship counselling.
- A jurisdictional requirement also needs to be satisfied. To apply for a divorce at least one person must:
- be an Australian citizen; or
- considers Australia to be home and intends to return; or
- ordinarily lives in Australia.
- A joint application is when both people apply for a divorce together.
- A sole application is when one person applies for a divorce.
- If it is a sole application for divorce then the court requires that you ensure that the other party is served (given) all the relevant court documents. This is so that both parties have a chance to be heard at court. There are rules that need to be complied with to satisfy the court that the other person has been served.
- The court understands that sometimes you will continue to live together even though you have separated. This really only becomes an issue if one person disputes the date of separation.
- If the court grants the divorce it will not take effect for one month and one day from the date of the grant.
- A lawyer may assist you to apply for divorce or there are kits available that will guide you in filing your own divorce application. For relevant forms see the Family Law Courts website: http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Forms/Divorce+forms+and+kits/.
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