Divorce is a relatively simple procedure that requires you to show that your marriage has “irretrievably broken down” and where there are children that proper arrangements have been made in all the circumstances for the children’s care, welfare and development.
Divorces are now heard by the Federal Magistrates Court as opposed to the Family Court as was the case previously.
There is no account taken of why the marriage has broken down, only that it has broken down irretrievably.
To show the Court that this has occurred, you must:
- Lived separately and apart for at least twelve (12) months;
- There is no reasonable likelihood of reconciling.
In some cases the Courts can consider that you have lived separately, even though you have lived under the same roof. In such case you need to prove to the Court that you are actually separated during this time.
To show that this has occurred, you must be separated for no less than twelve (12) months before a Divorce Application can be made. This does not have to be all at once and if you resume your relationship and separate again you can commence the calculation of the twelve month period from the beginning of the first separation period, so long as there is only one resumption period of no more than three months. The period that you had resumed your relationship cannot be included in the twelve month calculation.
It is important to be aware that a divorce only ends your marriage relationship, it does not finalise other aspects like property settlement like parenting arrangements that you may wish to put into place in respect of children.
It is also important to note that:
- The only reason you must get a divorce is if you wish to remarry.
- That time limits apply and that you have twelve (12) months from the divorce becoming final in which to commence proceedings for property settlement and/or spousal maintenance. If you have not resolved these issues within the twelve month period, you need to obtain the Courts permission to commence those proceedings out of time.
The Courts will grant a Divorce only if it finds the separation requirements have been met and that proper arrangements in all the circumstances have been made for all children under the age of 18 years. A Divorce only becomes final one month after it has been granted and you cannot remarry until after the Divorce becomes final.
After a Divorce has been granted, it is essential that you review your Will. It may be the time to also start planning for the future and to make a new Will that ensures that your property goes where you intend. It is very important that you see your Solicitor no matter how much or little you have to ensure that your Will reflects your wishes.