People often start finding a reason to blame each other for a failed relationship but Australia’ laws say we don’t want to blame anyone for that. If you have tried your best to be in a relationship but there is no expectation or hope of reconciliation, then no one can force you to be in that relationship. The divorce application can be applied solely, or it can be a joint application.
Myth
People often get confused that divorce proceedings will automatically include parenting and property matter but that is not the case, divorce proceedings are handled completely different from property and parenting matters, and there is a separate procedure for that.
Pre-requisite
There are certain things that you need to be clear on before you go ahead to file an official divorce application:
- Marriage Validity – To be considered legally married in Australia, your marriage must be valid either because it took place in Australia or overseas, as long as it’s recognised under Australian law. If you were married overseas, you’ll need to provide an official marriage certificate as proof. If the certificate is in a language other than English, it must be translated into English by a certified translator.
- Irretrievable breakdown of the marriage – In Australia, the only legal reason required to apply for a divorce is that the marriage has broken down beyond repair, this is known as an “irretrievable breakdown of the marriage.” It means that the relationship has ended and there is no reasonable chance that you and your spouse will get back together. You don’t need to prove any specific wrongdoing by either person, such as cheating or abuse. Instead, the law simply requires that you have been separated for at least 12 months as evidence that the marriage is over.
- At least 12-month separation period – You can only apply for divorce if you have formally separated for at least 12 months, without reasonable likelihood of reconciliation. You can either agree on a separation date with your partner, or you can also send a clear formal communication to your spouse that for you the separation has officially begun. You can also take help of an expert lawyer like us to prepare that letter on your behalf.
Even if one person doesn’t agree to the divorce, the other person can still apply as long as the separation period has been met and the relationship is clearly finished.
Connection to Australia – To apply for a divorce in Australia, either you or your partner must have a strong connection to the country. This means at least one of you must meet one of the following conditions:
- you are an Australian citizen (by birth, descent, or by grant of citizenship), or
- you live in Australia and consider it your permanent home, or
- you have been living in Australia continuously for at least the last 12 months before filing for divorce.
This requirement ensures that the Australian courts have the legal authority to handle your divorce application.
Married for less Than 2 years
If you’ve been married for less than two years, the law expects you to try and work things out before applying for a divorce. This means you usually need to go to counselling with your partner and get a certificate from the counsellor to show that you both tried to fix the marriage. This certificate must be included with your divorce application. There are special reasons why counselling isn’t possible, for example, if there was family violence or you can’t contact your partner, you can explain that to the court and ask for permission to apply without the certificate.
Filing of Divorce
After you’ve met all the requirements for divorce, the next step is to officially apply for it. This means you need to fill out and send a divorce application to the Federal Circuit and Family Court of Australia, which is the court that handles divorces. You can do this by yourself, which is called a sole application, or you and your partner can apply together, called a joint application. When you submit your application, there is usually a fee you need to pay, but if you’re on a low income or have financial difficulties, you might be able to get the fee reduced or waived.
Serve the Divorce Papers
If you apply for divorce on your own, you have to officially give a copy of your divorce application to your ex-partner this is called “serving” the papers. You can’t do this yourself; someone else, like a friend or a professional process server, has to deliver the documents for you. After the papers are provided, you will need to fill out and send proof to the court showing that your ex-partner has received the documents. This lets the court know that your ex is aware of the divorce application.
AND if you don’t want to go through that trouble by yourself you can contact JHV Lawyers to help you with entire process and make it much simpler and easier for you.
Sonali Tandon
JHV Lawyers