Your lawyer is able to commence divorce proceedings in the Federal Circuit Court of Australia on your behalf if either you or your former spouse has Australian citizenship or domicile or been ordinarily resident in Australia for the past year.
An application for divorce can be made after you and your former spouse have been separated for a period of 12 months and one day. Australia operates on a ‘no-fault’ system of divorce and the only grounds for granting a divorce is the irretrievable breakdown of marriage, established by evidence of the parties having lived separately and apart for a continuous period of 12 months immediately before filing of the application. The Court will not grant a divorce order if it believes that there is a reasonable likelihood of cohabitation being resumed.
What does the Court consider to be “separation”?
The word “separation” does not necessarily mean physical separation, but simply the effective breakdown of the matrimonial relationship. Separation is generally considered to have occurred by the Court where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed. What comprises the martial relationship will be different for reach couple, and marriage involves many elements, which may include living under the same roof, recognition of the marriage by both spouses in public and private relationship, and the nurture and support of the children of the marriage.
Marriages of less than two years
A divorce application cannot be filed within two years after the date of marriage, unless a certificate is also provided to the Court with the application stating that the parties have considered reconciliation with the assistance of an approved family counsellor.
If the court considers that there are special circumstances why the application for divorce should be considered where the parties have not considered a reconciliation, it may grant leave for the application to be filed or, if it has been filed, declare that the application is valid.
A divorce order under the Family Law Act 1975 (Cth) takes effect one month after it is made. A Certificate of Divorce is issued at this time, whereupon the parties are free to remarry.
Effect of divorce on wills
A divorce order has the effect of revoking a gift of property or appointment of trusteeship made in a will in favour of a spouse, unless a contrary intention is shown in the testamentary document.
We recommend that you speak to one of our lawyers as to the effect of a divorce order on your Will.
Effect of divorce on property and spousal maintenance applications
There is a time limit of 12 months after a divorce order has taken effect for filing applications for property and spousal maintenance, except where the Court grants leave to do so or there is consent by both parties. In other words, if 12 months has passed since the date the divorce order took effect and you now wish to initiate proceedings for spousal maintenance or the alteration of property interests, you may be precluded from doing so.
Our Family Law team here at O’Brien Connors & Kennett is available to you if you have any further questions or require relevant legal services, feel free to contact us or visit our Northern Beaches office.