1. I was married overseas. Can I apply for a divorce in Australia?
Yes, if either you or your spouse:
- regard Australia as your home and intend to live indefinitely in Australia
- are an Australian citizen or resident, or
- are an Australia citizen by birth or descent
- are an Australia citizen by grant of an Australian citizenship
- ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
2. When can I apply for a divorce?
- Your marriage must have broken down irretrievably
- You must have been separated for at least 12 months
- There must be no reasonable likelihood of cohabitation being resumed.
3. How does separation occur?
- Separation is the end of cohabitation between a husband and wife
- Separation can be caused by one or both of the parties
- When one of the parties wishes to separate, he or she must communicate the decision to the other party.
4. Can separation take place while we’re still living in the same house? Yes.
- Separation under one roof can occur even though the parties continue to live in the same house and to provide household services to each other
- Additional evidence that separation has taken place will be required by the court.
5. What happens if we reconcile and separate again?
If you resume cohabitation but after less than 3 months you separate again, the period prior to resuming cohabitation and the period after the separation may be added to make up the minimum 12 months of separation.
If you resume cohabitation but after more than 3 months you separate again, you will need to be separated for a further 12 months before you can apply for a divorce.
6. What are the special requirements when I’ve been married for less than 2 years?
Both parties must attend counselling to assess the possibility of reconciliation and obtain a certificate from the counsellor. Then the counselling certificate must be filed with the application for divorce. Alternatively, you can apply for an exemption from the counselling requirement.
7. How do I apply for a divorce?
An application for divorce must be filed with the Federal Circuit Court of Australia. It may be made by one or both parties.
8. Can I amend my application for divorce?
Yes, within 14 days before the divorce hearing or otherwise with the consent of the court.
9. Can I discontinue my application for divorce?
Yes, at least 7 days before the divorce hearing.
10. Can my partner oppose the divorce?
Yes, by filing and serving a Response to an Application for Divorce. Your partner may also dispute the 12-month period of separation claimed by you. Note that the person who filed a Response must attend the divorce hearing.
11. What documents must be provided to the court?
- Marriage certificate
- Documents in support of application for filing fee waiver or exemption
For overseas marriages, the following documents may also be required:
- An English translation of an overseas marriage certificate with an affidavit of qualified translator.
- If not already filed with the Federal Circuit Court, any parenting plan, parenting orders, property orders, child support agreement, or financial agreement.
- Proof of Australian citizenship or residency.
- Copy of your passport.
12. Will I have to attend the divorce hearing?
Attendance at the divorce hearing may be necessary if there are children under 18 years of age, but otherwise, no.
13. When will the divorce take effect?
A divorce order will take effect one month and one day after the date on which the divorce order is made. If special circumstances exist, an application may be made to change the date on which the divorce will take effect.
14. When the children are under 18, does that affect a divorce?
Yes. The application for divorce requests that information be provided about children less than 18 years of age, and the court must be satisfied that proper arrangements have been made for the children.
15. What does a divorce order include?
A certificate of divorce.
16. Who is entitled to receive a divorce order?
Each of the parties will receive a sealed divorce order.
17. When can I remarry?
A party may remarry after the divorce order has taken effect, one month and one day after the divorce is granted. If you intend to remarry, you must give the marriage celebrant a Notice of Intended Marriage at least one month before the wedding date and comply with other requirements of the Marriage Act of 1961. As soon as the divorce order is granted, the marriage celebrant may accept the Notice of Intended Marriage. You must show a copy of the divorce order to the marriage celebrant before the wedding can take place.
18. What are the time limits on spousal maintenance and property settlement claims made after divorce?
An application for spousal maintenance and/or property settlement must be made within 12 months of the date that the divorce order becomes final. If shortly prior to the 12-month anniversary that your divorce order becomes final, you have still not finalised these issues, you should obtain legal advice about filing a court application.
19. What is the effect of divorce on a Will and binding nominations?
Divorce revokes the terms of a Will providing for a former spouse. Mathews Family Law recommends that immediately following a divorce, an existing Will be reviewed or a Will obtained.
Mathews Family Law also recommends that all nominations of beneficiary of superannuation and insurance policies be reviewed immediately upon divorce.
Special circumstances may exist when a person’s rights, benefits and entitlements may be dependent on remaining married to your spouse; for example, the beneficiary of a family trust, veteran’s pension, judicial pension, or parliamentary pension.
Mathews Family Law recommends that you obtain legal advice regarding the effect divorce may have on any rights, benefits and entitlements that you may have.
While a divorce order terminates a marriage, it does not finalise parenting, child support, spousal maintenance and financial issues arising from the breakdown of a marriage.
Mathews Family Law can provide you with legal advice about all of these issues.
If you have any other questions, please, telephone us on 9804 7991 or email email@example.com.