This guide is intended to be general in nature, and Commins Hendriks Solicitors recommends you seek legal advice tailored to your needs and specific circumstances. Commins Hendriks’ team of family law professionals can help you with your questions.
The Family Law Act does not take into account why the marriage broke down. The only ground for obtaining a divorce is that the marriage has broken down irretrievably.
To show the Court this has occurred, you and your partner must have separated for no fewer than 12 months. This does not have to be all at once, the Court does allow for time to be counted before and after an attempted reconciliation, so long as the reconciliation period is no longer than three months.
You can be considered separated even if you live under the same roof, but you will need independent evidence in support of this.
You can apply for a divorce on your own, or jointly with your spouse. You will need to show the Court that:
- You were married (you will need your marriage certificate);
- You have been separated for at least 12 months; and
- There is no hope of you reconciling.
If there are children of the marriage, or children in the home who are under the age of 18, the Court will need to be satisfied proper arrangements have been made for their care and welfare.
Once you have lodged your divorce application with the Court you will be given a date for hearing, usually about six weeks later. Unless you have made a joint application with your spouse, you will need to arrange for the application to be personally served on your spouse at least 28 days before the hearing.
If you have children under 18, the person applying for the divorce must attend at the hearing to tell the Court of the arrangements for the children. If Commins Hendriks acts for you, we can appear at the hearing by telephone and you need not personally appear.
If the Application is successful, the Court will issue a Divorce Order. This means your divorce has been granted, but is not final yet. One month after the Divorce Order has been issued, you will be officially divorced.
Once you obtain a divorce, you should consider your Will. A divorce can have an effect on various clauses in your Will. Commins Hendriks has many legal professionals who can help you with your Will. Please refer to the Wills Plain English Guide
When a divorce is granted, limitation periods apply with respect to applying to the Court for a property settlement. Please speak with one of our lawyers regarding this issue.
Remember, while a divorce will finalise the dissolution of your marriage, it will not determine other aspects, like a property settlement or parenting arrangements for any children.
Please refer to our Plain English Guides on these topics.