Family Law – Are you Eligible to Obtain Divorce and What is Involved in Obtaing One
We refer you to our earlier article Where to Apply for a Divorce and the Costs Associated with Divorce Proceedings and recommend you read it in concert with this article. We will address the following here:
>> Are you eligible to obtain a Divorce;
>> What is involved with obtaining a Divorce;
Are You Eligible to Obtain a Divorce & What is Involved With Obtaining One:
One of the requirements of applying for a Divorce in Australian Courts are that either you or your spouse:
>> regard Australia as your home and intend to live in Australia indefinitely; or
>> are an Australian citizen by birth, descent or grant of Australian citizenship; or
>> ordinarily live in Australia and have done so for 12 months immediately before filing for Divorce.
Although according to the Family Law Act 1975, the principle of no-fault divorce is established, and hence the Court does not consider why the marriage has ended, there is one ground for Divorce, being, that the marriage has broken down irretrievably. To satisfy the Court of this:
>> You and your spouse must have been separated and lived separately and apart for at least 12 months;
>> There must be no reasonable likelihood of resuming married life; and
>> There must be no likelihood that you will get back together.
The Court cannot grant a Divorce if there is any chance or likelihood of you and your spouse living together again as husband and wife. Also, where there are children under 18 years of age, a Divorce can only be granted by the Court if the Court is satisfied that proper arrangements for the children have been made.
In relation to the requirement of separation, it should be noted that, it is possible to be separated under the same roof.That is, if parties live under the one roof, but have not been acting as husband and wife for 12 months, and are able to satisfy the Court about this, then the Court usually regards the parties as having been separated for the required period. There are certain rules where separation is made up of a number of broken periods. If a party is applying separately, he/she needs to do so by preparing an affidavit to the Court to that effect. If applying jointly, both parties need to file separate affidavits. In both, sole and joint applications, the Court also requires that another person, other than the spouses, prepare an affidavit that contains as much information as that person knows about the parties’ separation. Affidavits need to be properly drafter addressing a number of legal formalities including following the rule of evidence with which we are able to help you.
Another restriction to obtaining a Divorce is where the parties have been married for less than 2 years. Where that is the case, the parties must either:
a. Attend counseling with a family counselor or nominated counselor to discuss the possibility of reconciliation between them.The parties need to ask the counselor to complete a counseling certificate that states that he/she has discussed the possibility of reconciliation with both parties.The parties are then required to attach the completed certificate to the Application for Divorce when it is filed; or
b. If the parties have not attended counseling, they need to seek the Court’s permission to apply for Divorce.This permission is sought by filing an Affidavit with the Application for Divorce.In the affidavit, the parties are required to explain why they did not attend counseling, and any special circumstances of their case.
At the Hearing, where the Divorce application is successful,the Divorce Order will be granted, and it becomes absolute/final one month and one day after it is made. However, this period may be shortened by a Court Order.Once the Divorce becomes final a Divorce Certificate will be forwarded to each of the parties or to their legal representatives.
At LAC Lawyers, we are experienced in Family Law proceedings, whether Divorce issues, maintenance, children, or property division. All of these matters can be confronting and real expertise is required to deal with them effectively. We listen to our client’s needs and aim to achieve the best possible results for them. For competent legal advice and representation call LAC Lawyers.
If you are interested to know something more about Are you Eligible to Obtain a Divorce and What is Involved in Obtaing One and Family Lawyers then please visit our website www.laclawyers.com.au
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