A divorce in Australia simply ends the marriage formally. To obtain a divorce either spouse, or both jointly, can apply to the Federal Magistrates Court for a divorce order. This will not deal with the parenting arrangements for children, or the division of property, which are dealt with separately and in isolation.
In order to be eligible to apply for a divorce the spouses must be separated for 12 months. Separation occurs when one spouse forms the view the relationship has broken down irretrievably, then communicates this view to the other spouse and acts upon the wish to separate. This involves either moving out of the shared residence, or living separately under the one roof.
To be eligible to apply for a divorce in Australia at least one of the spouses must be an Australian citizen, domiciled here (regards Australia as home), or has been ordinarily resident here for the last 12 months (has a visa entitling them to be here).
Where there are children of a marriage, the Court has to be satisfied proper arrangements have been made for their care welfare and development. The children’s arrangements are set out in the Application for Divorce form.
Once an Application for Divorce form is completed, it is lodged with the Federal Magistrates Court together with the marriage certificate, and a hearing date is allocated. If it is not a joint Application, then it has to be served upon the other spouse. This is usually done by having someone over the age of 18 hand it to that spouse. There needs to be proof the other spouse was served with the Application.
Most divorces are not opposed, and are granted provided the Applicant carries out the procedural steps correctly. There is only one ground to oppose a divorce, and that is if the marriage has not broken down irretrievably; in other words there has not been a 12 month separation period.
For assistance with Family Law matters, phone Dominic Wilson, Managing Partner of Craddock Murray Neumann, on (02) 82684000. We have Family Lawyers who are certified by the Law Society of New South Wales as Accredited Specialists in Family Law.