Divorce: the legal end of a marriage, instigated by one or both partners, for a variety of reasons. There is no right or wrong reason to get a divorce.
Separation: the end of a relationship that has no chance of reconciliation
How to go about getting divorced
A legal process must be undertaken to get divorced. It takes a while since you must be separated for at least 12 months with no likelihood of reconciliation.
You can do a DIY divorce, but Vanessa Ash does not recommend this – if or when things get tricky, it is better to have had someone guiding you through the process than for you to try to undo actions.
The legal criteria for getting divorced
- You or your partner must call Australia ‘home’, and intend to live here indefinitely; or
- You and/or your spouse are Australian citizens by birth, descent, or citizenship; or
- You and your spouse live in Australia and have done so for 12 months immediately prior to applying for a divorce.
If you have been married for two years or less…
The two-years is from the date of your marriage to the date you apply to the court. The 12-month separation still applies. Anyone married for less than two years must also attend counselling to discuss reconciliation, and you must request permission from the court to apply. The counsellor must complete a certificate confirming your visit.
Steps to divorce
Step 1
You must get legally separated. This must be for 12 months (at least) before you can apply for divorce. Couples are allowed to live together if one of you can’t move out of the family home during this time, and still be legally separated.
Read more about your separation here
Step 2
Fill out and submit the divorce application.
Step 3
When just one partner is applying for divorce, the other person must have the application ‘served’ to them formally.
Step 4
A hearing will be arranged on a specific date, and if your application is successful, a divorce order will be granted.
Simple, right? But it can get tricky.
Opposing a divorce
A divorce can be opposed when there has not been a 12-month separation or the court does not have the jurisdiction to hear the application.
If you personally object to the divorce, or to any notes or statements made in the application, you are able to submit a Response to Divorce, and appear in court.
You are given 28 days to file this after the original application has been served.
Court hearings
Most court hearings do not require your presence unless you are the sole applicant and there is a child under 18 involved. You can ‘appear’ at the hearing by telephone.
Children
When children are involved, there are custody arrangements to be made.
Property division
Many marriages involve joint property and assets, so dividing these up is necessary.
Mediation
Divorces can get messy quickly – there are usually hurt feelings involved, and the desire to seek revenge or cause the other person further inconvenience, pain, or distress can be seductive.
Mediation can smooth things over and add a little bit of objectivity and sense to the proceedings. We can help. Read more about mediation here
Maintenance payments to a spouse
These payments are sometimes court-ordered, so it’s important to consider this element of divorce or separations in your legal advice. Read more about spousal maintenance here
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