Under the Family Law Act 1975, Divorce proceedings may be issued if the following elements have been established:
1. Either you or your spouse are an Australian Citizen by birth, decent of by grant of Australian Citizenship and have had residency in Australia for a 12 month period prior to making the Application;
2. You have been separated for 12 months and consider the marriage has irretrievably broken down;
3. You were married for more than 2 years or attended to the required counselling. In circumstances where counselling is not suitable, you must file and Affidavit explaining the reasons why counselling was not feasible.
We were separated, but living under the one roof – what does that mean?
You will need to satisfy the Court that there has been a change in your relationship constituting a separation. This means that you will need to provide additional evidence supporting your Application, such as an Affidavit from you and your independent witnesses.
We have children?
If there are children of the relationship under the age of 18, the Court needs to be satisfied that you have made appropriate arrangements for the care, welfare and development of those children. The Court may adjourn the proceedings if it is not satisfied that the arrangements in place are proper.
What is the process once I file?
Providing that the Application has been completed correctly and all required documents are attached (including payment), you will receive two sealed copies of your Divorce Application from the Court via the post in due course. The Application will state a date that the Hearing has been set down for.
The other party then needs to be served with one of the sealed Applications, this needs to occur at least 28 days prior to the hearing date. You are not allowed to personally serve the other party. There are additional forms that need to be completed and filed in the Court once service has been effected by a process server.
What if I don’t know where the other party is?
If you cannot find the other party, an Application to dispense with service or an Application for substituted service needs to be completed, together with an Affidavit.
For further information on Divorce, please contact us today to arrange an appointment.