What To Know Before Applying For Divorce

You can apply for a divorce in Australia if either you or your spouse:

1. regard Australia as your home and intend to live in Australia indefinitely, or
2. are an Australian citizen by birth, descent or by grant of Australian citizenship, or
3. ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

In order to obtain a divorce in Australia, the party applying for divorce must demonstrate that there is an “irretrievable breakdown of a marriage” in accordance with The Family Law Act 1975. 

Under Section 48 of the Act, the applicant for divorce must demonstrate that the couple had separated for at least 12 months. It is only necessary for one party to form the view that the marriage is over before applying for divorce. 

When giving evidence about the separation date, there are many different ways that separation can be established. In some cases, both parties simply agree on the date of separation. In other cases, the parties may not agree on the date of separation date. If there is any dispute as to the date of separation, the Court may appoint a hearing date to determine the separation. These factors include:

1. Whether the parties lived together,
2. Whether there was an intimate sexual relationship,
3. Whether the parties shared Domestic duties ,
4. Whether the parties represented they were in a relationship at various times,
5. Care arrangements for the children,
6. Any other matter the court thinks is appropriate.
   

Sometimes, the question of separation date is made challenging to answer by reason of the fact that the parties are living under the same roof. One party may regard the marriage as over, the other may not. 

Accordingly, when an application for divorce is made while separated under the same roof, there is often a legal requirement for an independent person to verify their knowledge of the separation prior to the divorce being granted. This must be done in the form of an Affidavit. 

Sometimes, the process of obtaining the divorce may be unnecessarily complex overwhelming and confusing.  It is therefore important to obtain independent legal advice. At Hillcrest Family Lawyers, we are able to assist you with up to date legal advice and can help you make the right decisions before applying for Divorce. 

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