Getting Divorced

The Facts

The Family Law Act 1975 gives the Court power to deal with the dissolution of marriage also known as getting divorced.

Parties seeking a divorce need to satisfy the Court that they have been separated for at least 12 months, and that there is no reasonable likelihood of married life resuming.

If the parties are on good terms, sometimes a joint application for divorce will be made where both parties sign the papers. Otherwise, one party can apply for the divorce on their own.

The Process

A basic breakdown of the divorce process is as follows:

  1. fill out the form found online;
  2. file the form with the Court along with a filing fee;
  3. serve the sealed Court documents on your former partner (see below as to whether required)
  4. a hearing is held (see below as to whether you need to attend, and
  5. an Order of the Court is made granting the divorce.

Married less than 2 years?

If you are applying for a divorce and have been married for less than 2 years, it is a requirement that you have attended counselling and that you file a counselling certificate with your application.

If you do not attend counselling, you will need the Courts permission to apply for the divorce.

Separated but living under the same roof in the past 12 months?

If the parties, in the 12 months since separation, have at any time lived under the same roof, they will need to provide further evidence to the Court that they were not living together as husband and wife, generally by Affidavit. The parties may have resided under the same roof and still have been separated, but the court will need to be informed of the circumstances.

If this applies to you, you need to show there was a change in your marriage and explain any:

  1.     changes in sleeping arrangements;
    2.   reduction in family outings or activities;
    3.   decline in assisting each other in the home;
    4.   division of finances, or
    5.   anything else that shows the marriage has broken down.

You should also explain why you continued to live together and if you still do, when that will likely change. The Court should also be advised of the living arrangements for any child of the marriage if under 18 years of age.

Sole or Joint Application?

There are two main benefits in filing a joint application for divorce. If you file the application together, you do not need to attend Court at all. You will be notified when the Order is made. Also, you do not need to arrange a process server to serve the documents on the other party.

If you file the application yourself, you will need to have the documents properly served on the other party in accordance with the requirements of the law so that they know what is occurring. You cannot drop them at their front door.

Attendance at the hearing?

Going to Court can be a daunting experience. Thankfully, you only need to attend the hearing if you have filed a sole application for divorce and there is a child of the marriage aged under 18 years at the time of filing OR you have indicated that you wish to attend in question 2(a) of the application.

Otherwise, barring any issue with the paperwork, the order can be made in the absence of the parties.

Do I need a lawyer?

People can apply for divorce themselves following the Instructions provided with the Application for Divorce form. However, if you are unsure or do not understand what is required of you, it may be worthwhile contacting us at Ballarat Lawyers and we can assist you in making the process as quick and stress free as possible.

Whether you have any questions about the above information or your would like assistance in applying for a divorce, please contact us on 5303 0281 or at reception@ballaratlawyers.net.au.

The information on this website is of a general nature only. It is not, nor is it intended to be, legal advice. You should consult a lawyer for individual advice about your particular circumstances.

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