The term divorce refers to a legal dissolution (or termination) of a marriage. It does not provide for any division of property or for any arrangements to be made for the children. These are considered separate issues and are dealt with under separate considerations under the Family Law Act.
The divorce process itself is relatively simply. To be eligible to apply for divorce in Australia, the court must be satisfied that at least one party is an Australian Citizen, intends to live in Australia indefinitely, or has ordinarily lived in Australia for twelve months immediately before divorce.
In addition, the court needs to be satisfied that a valid marriage has taken place and that the marriage has broken down irretrievably and there is no reasonable likelihood of the parties resuming married life. To assist in satisfying the court of that fact, the parties are required to be separated for a period of no less than twelve months.
Often there are circumstances where a couple will reconcile for a brief period of time before ultimately deciding that the relationship has irretrievably broken down. The court takes into account periods of separation in circumstances where the reconciliation is less than three months.
There are also circumstances where parties separate under the one roof (due to children or other financial circumstances) and the court accepts that separation under the one roof is separation (although additional documents need to be filed with the court to prove that separation occurred at that time).
The administrative process for obtaining a divorce involves filing an application. If you are applying for divorce by yourself, then a court will hear the matter and ensure that the application has been served upon the other party (which means that they are aware of the proceedings) and that there is no dispute to the divorce being made (in that you have followed the procedural requirements and otherwise meet the conditions under the Act). If both spouses are filing it together, it may not be necessary to attend a hearing (although the court can still request attendance).
Should a divorce order be made at the time of hearing, it will become effective one month and one day after. After that time, you are able to do all things to get remarried.
Should you apply, and have granted, a divorce, it is important to remember the following:
- That it does not necessarily change any of the beneficial entitlements your spouse may have to your superannuation; and
- That it effects the provisions of your Will (should it not otherwise have been altered);
- That it does not effect the property division of the parties and, there is a limitation under the Family Law Act that property matters must be filed with the court within twelve months of the date of the divorce taking effect.
Therefore, if you are considering applying for a divorce, it is important that you also obtain advice about the division of property, arrangements for your children and updating your will.
(Disclaimer: The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.)