Applying for a divorce can be a very emotional experience. At times, there
can be social stigma attached to the process but you need to ensure that you do
what is best for you. This divorce kit has been specially designed in a simple
and user-friendly method to assist you through the divorce procedure and to
minimise some of the stresses associated with undertaking this legal process.
It is important you understand that the Family Law Act 1975 reformed family
law and created a new Australian court structure that now works on a “no fault”
system. The only ground for divorce is an IRRETRIEVABLE BREAKDOWN of the
marriage. This means that obtaining a divorce is not about who may or may not be
at fault. The courts only concern is whether or not there is any possibility
that you can work things out with your spouse and give the marriage another try.
If this is not possible, there are various steps you need to undertake to prove
this to the court.
Divorce proceedings can bring about very strong emotions towards your spouse.
It is important to move quickly through the steps for obtaining a divorce
without attempting to “seek revenge” on your spouse. Any attempts to use
children or property as a weapon towards your spouse will lead to added costs
and is likely to act to your detriment in the long run.
A divorce will legally end your marriage. In order to legally end your
marriage you need to have been legally married. If, for any reason, you feel
your marriage may not be legal, for example, your spouse was already married at
the time of your marriage or there was not a real consent for reasons such as
fraud or mistaken identity, then your marriage may be void (not legally
binding). If this is the case, you need to obtain legal advice about applying
for a decree of nullity.
For the majority of people, their marriage is valid and when they want to
bring their marriage to an end, they apply for a divorce.
If you are applying to the court for a divorce, you are called the applicant.
Your spouse is called the respondent. You may apply for a divorce if at the time
you file (or lodge) your application at the court, either you or your spouse
- An Australian citizen; or
- Domiciled in Australia (that is that you live in Australia
and intend to continue living permanently in Australia); or
- Are ordinarily resident in Australia and have been so
resident for one year immediately preceding that date.
What is meant by separation?
To establish that your marriage has irretrievably broken down, you must
separate from your spouse for a continuous period of at least 12 months
prior to the date on which you swore your application for divorce. The court
will not make an order for divorce if the court is satisfied that there is a
reasonable likelihood that you may get back together with your spouse.
Separation will occur as soon as one person moves out of the house (that is,
cohabitation ceases). It is possible to be separated under the same roof but it
can be difficult to prove to the court that you are in fact separated in the
circumstances. If you intend to separate under one roof you must be careful to
make it obvious that you have in fact broken up. Look at things such as who
cooks, who cleans, which bedroom do you sleep in, do any common financial
accounts still exist, do you still go out together socially, do your friends and
family know you have broken up etc. You should put yourself in the position of a
stranger looking at your life. Would it be obvious to that stranger that you and
your spouse are no longer a couple?
The Family Law Act allows you to reconcile and live together again with your
spouse for one period of three months before it becomes necessary to begin the
12 month separation period over again. However, any period of reconciliation
that lasts for less than three months must be added onto the overall period of
Family Law Kit
The above information is an extract from the AussieLegal Family Law Kit which includes detailed information and
case studies on the
Family Law Rules, Divorce,
Child Residence & Child Access, Property Settlements, Child Support and
Spousal Maintenance. The Family Law Kit also includes a Property Settlement
Calculator which can help you estimate what your fair share of the matrimonial
assets you are entitled to in the event of separation.
The Kit will be an invaluable guide you if you choose to act for yourself
when making an application to the Family Court. Alternatively, if you choose to have a lawyer acting for you, the
Family Law Kit will help you better understand what your lawyer is doing, help you
ask the right questions and help you make informed decisions.
Click on the link above to read more about the Kit.