No relationship begins expecting for a separation to occur and no marriage is finalised anticipating a divorce. Unfortunately the destiny of a relationship is unpredictable and differences can develop.
Sometimes these differences cannot be reconciled and the last resort of a divorce becomes the only way forward in the eyes of one or both parties. Should this happen there is a careful and deliberate process for divorce in the Australian legal system.
Both parties should seek legal counsel and representation from a family lawyer in Sydney at the start of separation. The attorney can help with mediation and preparing the application.
The following details the steps required to file for a divorce.
A divorce cannot be filed immediately after a relationship breaks down. In Australia a genuine, long term separation of the couple needs to be established.
Separation refers to when two people are no longer living together in the form of a relationship. They can be living under the same roof as long as they are not a living a married life.
The parties need to be considered separated for a minimum of 12 months before any paperwork can be filed. This period is designed to allow for couples to try and mediate their differences if there is any chance of the marriage being salvaged.
If 12 months of separation has occurred and there is no reasonable expectation of the marriage continuing, then the parties are eligible to file for divorce.
An application can be filed by one or both spouses. If it is signed by both it is considered a joint application. If the application is not joint then the party who applied for it must serve a copy to their spouse.
The completed and signed application is filed to the federal circuit court of Australia along with the certificate of marriage. Additional documents must be filed if the marriage certificate is not in English or the separation period took place under the same roof.
The divorce will only be considered if all of the necessary procedures have been followed and files documented. Failure to do this may result in the court adjourning the divorce hearing to a later date to allow time for the proper procedure to be followed.
A family lawyer in Sydney like O’Sullivan Legal will be able to help make sure all the correct procedures in filing for divorce are met.
The Divorce Hearing
Once a hearing does begin the court will determine if the criteria for divorce have been satisfied. At this point a divorce order will be served.
The order will only be considered finalised one month after the date of the hearing. Parties cannot remarry until the divorce order has been officially finalised. If a party does try to remarry before the divorce is official then they will be committing the offence of bigamy.
The hearing itself may not require either party or their attorneys to physically attend. Parties must attend the divorce hearing if there is a child under 18 years of age present in the marriage and the divorce is not a joint application.
The hearing deals only with the issue of whether the application for divorce is valid and genuine. It does not deal with property settlement, child support or other issues related to separation.
If there are children under 18 years of age present in the marriage then the court will carry out some brief questioning about the arrangements that have been made for them. These questions are required to be answered in the original marriage application.
It can take up to 4 months for finalised divorce orders to be posted. This can take even longer if there are complications in serving divorce papers to a spouse or an incorrect procedure is followed.
The Australian legal system tries to discourage unnecessary divorces by making the process take time and commitment to carry out. This ensures that only marriages that have no other option end up being divorced.
Anyone who is going through a separation and wants to file for divorce should seek the services of an experienced family lawyer in Sydney to make sure they get the best outcome.