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Divorce – What you need to know

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There are many misconceptions in relation to what a Divorce is and the process of obtaining a divorce.

A divorce these days is a relatively simple process and can in most instances be dealt with by the average person, without the necessity of legal advice.

When should you obtain legal advice re your divorce?

Sometimes, where matters are more complicated, clients are advised to obtain legal advice when applying for divorce, including in the following circumstances:

  1. If you have separated under the same roof (extra evidence is required to prove the length of the separation);
  2. If your legal name currently is different to that on your marriage certificate;
  3. If you cannot obtain a copy of your marriage certificate;
  4. If you cannot locate/are unable to serve your spouse;
  5. If your marriage certificate is not in English;

Divorce Myth versus Fact

  1. Divorce is a completely separate process from property settlement and child custody agreements;
  2. You can apply one year and one day after the relationship has broken down provided you have been living separately and apart for that period;
  3. You cannot count any period following separation that you have been living under the same roof (unless further evidence is provided):
    1. An Affidavit of both parties (if a joint application) or an affidavit of you and a third party (if a sole application) is required showing a change in the relationship to demonstrate that you and your ex partner have separated.
  4. You do not have to get a divorce;
  5. In order to remarry, you must first apply for a divorce;
  6. A divorce becomes final (takes effect) 1 month and one day following the divorce hearing, when your divorce certificate is issued, and you cannot remarry until that time;
  7. You are required to finalise your property or otherwise file an application for property settlement to the court, within one year of your divorce becoming final;
  8. Consent to a divorce is not a requirement. Australia is a no fault system, which means the reasons for separation are irrelevant to the divorce (and also generally irrelevant to the property settlement);
  9. If you have been married for less than 2 years, you are required to obtain a counselling certificate before applying for a divorce;
  10. If you were married in a different country, you can still apply for a divorce in Australia (provided the jurisdictional criteria is satisfied)
  11. If your marriage certificate is in a different language, you will be required to have it translated into English before applying for a divorce, and provide an affidavit of the translator confirming the correct translation of the marriage certificate;
  12. The criteria that needs to be satisfied for a divorce to be granted are:
    1. Jurisdiction – you need to be an Australian citizen, resident or have lived in Australia for the last twelve months;
    2. Separation – you need to have separated and have been living separately and apart for 12 months;
    3. The Application must be served on the other party at least 28 days prior to the hearing date and served according to the rules;
    4. Proper (not final) arrangements have been made for care of the children under 18.
  13. You must provide a copy of your marriage certificate when applying for a divorce;
  14. If you were born outside of Australia you are required to provide a copy of your citizenship/residency certificate, when applying for a divorce;
  15. A basic step by step guide to obtaining a divorce is:
    1. An application for divorce may be filed online with the Federal Circuit Court of Australia via the commonwealth courts portal. 
    2. You must swear/affirm the application before a lawyer or a justice of the peace;
    3. You must provide to the court the original application and two copies of the application and supporting documents (if not filed electronically);
    4. If you file a joint application for divorce, you do not need to attend the hearing;
    5. If you apply for a divorce on your own, you are required to serve the application on your spouse and attend the hearing, if there are children under eighteen;
    6. Service of the application can occur via a process server or by providing the application to your spouse and having them sign an acknowledgement of service. Proof of service must be filed with the court;
    7. If you apply for divorce on your own (sole application) you are required to serve the application:
      1. 28 days prior to the hearing date if your spouse is in Australia;
      2. 42 days prior to the hearing date if your spouse is overseas.
    8. One month and one day after the hearing, a certificate of divorce will be made available to you either by post on the online portal.
  16. You should change your will following your divorce and your superannuation binding death benefit nomination.

Barton Family Lawyers are experienced in handling divorces of all shapes and kinds.

Contact us today to book a reduced rate, 1 hour initial consultation with one of our family law experts to receive advice about your specific circumstances and a fixed fee quote for your divorce.

 

Barton Family Law