No matter how sincere and pure people’s intentions are when they utter their marriage vows and say ‘I do’, there comes a time in some marriages when the relationship irretrievably breaks down. In such cases, separation is usually inevitable and the couple could end up divorcing.
Traditionally, family law courts were strict with the requirements to be met for a couple to be considered separated or before granting a divorce. But thanks to the Family Law Act of 1975, divorce in Australia is now a fairly simple process. The adoption of the then-new rules has made no-fault divorce possible. Today, courts recognise only one basis for divorce: irreconcilable differences.
If you’re on the brink of dissolving your marriage but have questions concerning separation and divorce, the following information might help.
Separation vs divorce
Separation typically refers to married partners who don’t live together physically. It doesn’t matter if it’s a mutual decision or decided on by one party unilaterally. For cases where the couple considers themselves separated while living in the same address, legal counsel is highly recommended.
To obtain a divorce, the couple must provide proof of separation for at least 12 months or one year. One or both parties may apply for divorce in person or online.
Aside from the separation timeframe, you need to fulfil the following requirements in order to file for divorce:
- You must be a citizen of Australia, or
- You are residing in Australia and consider it your permanent residence, or
- You normally live in Australia and have been in the country at least a year prior to filing for divorce.
If you meet the above requirements but got married abroad, you can still file for divorce in Australia.
Those who’ve been married for less than two years are required to attend family counselling and get a counselling certificate, or get court approval to file for divorce even without a certificate.
There is no precise timeframe for granting a divorce decree. However, once the court makes a decision, it usually comes into force a month and a day after the divorce is granted.
Effects on children and property
Getting a divorce does not automatically include childcare and property matters.
In fact, if minor children are involved, the court can only grant a divorce after it is satisfied with the childcare arrangements. However, you can apply for property orders while divorce proceedings are ongoing. But if the divorce has been finalised, you need to apply for property orders within a year or 12 months from the date of the divorce decree.
Separation and divorce are essentially emotionally turbulent times. However, family law has made the divorce process a simple one through no-fault divorce.
If you’re unsure about the intricacies of your situation, it’s best to consult a family or divorce lawyer.
If this article has inspired you to think about your own unique situation and, more importantly, what you and your family are going through right now, please contact your advice professional.