Rebecca Schuetze

10 Divorce questions & answers

Top 10 Divorce Questions & Answers

If you are thinking of getting a Divorce, read the Top Ten Divorce Question & Answers below to help you get started.

1. How quickly can I get a Divorce?

In Australia, there is unfortunately no such thing as an instantaneous Divorce. In order to be able to apply for a Divorce you must have been separated from your spouse for a period of at least 12 months. The Application process can then take up to 4 months to finalise.

2. What if I haven’t been married very long?

If you have been married for less than two years, the Court requires you to attend counselling with a family counsellor or nominated counsellor to discuss the possibility of reconciliation with your spouse. If you do not attend counselling with your spouse, you will need the Court’s permission to apply for a divorce. You may seek this permission by filing an affidavit with your divorce application.

3. What if we continued living in the same house after separation?

If you and your spouse have continued to live together after separation, the Court must be satisfied that you and your spouse lived separately and apart for a period of 12 months immediately before the date of applying for a Divorce Order.

The Court will require evidence that either you or your spouse said the relationship was over and, from that time, you did not act like a married couple. This might include ceasing sexual activity, living in separate rooms, having different bank accounts, cooking your own meals and being open about your separation to friends, family and even neighbours.

If you and your spouse have lived at the same address for some or all of the separation period, you will need to provide affidavits describing your separation.

4. What if my spouse does not want to get a Divorce?

As long as you prove that your marriage has ‘irretrievably broken down’, grounds for divorce are established. However, all partners have the right to know about the divorce hearing and there are strict deadlines in regard to submitting Court documents. If your partner opposes a divorce, they can file a response prior to the hearing.

5. If I got married overseas, can I get a Divorce in Australia?

Yes, the Australian Family Law Courts have jurisdiction to grant a divorce if you were married outside of Australia, as long as at least one of the following pre-conditions apply:

  • You or your spouse regard Australia as your home and intend to live indefinitely in Australia; or
  • You or your spouse are an Australian Citizen; or
  • You or your spouse ordinarily live in Australia or have lived in Australia for at least one year immediately before applying for a divorce.

You must still satisfy the usual requirements for a divorce to be granted.

6. Do I have to attend Court to get a Divorce?

Once your Application is filed with the Court, it will be listed for a Hearing.

If there are no children of the marriage who are currently under eighteen (18) years of age, neither you nor your former spouse will be required to attend the hearing.

If there are children under eighteen (18) years of age you will be required to attend the court hearing if you make a sole Divorce Application to the Court.

If, however the Divorce Application is a joint application and the children of the marriage are under eighteen (18) years of age, neither you nor your former spouse would be required to attend the hearing as long as the Court is satisfied that there are adequate care arrangements in place for these children.

7. Does a Divorce application include Parenting and Asset Order?

A Divorce does not deal with parenting and property arrangements. You will need to make parenting and property arrangements separately noting that if you wish to make an application to the court you will need to do so within 12 months of when the divorce was finalized.

8. Do the Courts side with one spouse over another?

The Family Court is guided by fair principles and does not side with one spouse over the other. If there are children of the relationship, the court will always focus on what is in the best interest of the child. If there is an application for a property settlement, the court will take into account the non-financial and financial contributions of each parties.

9. Does the Court need to know why the relationship broke down?

Under Australian law there is a ‘no fault’ jurisdiction, which means the divorce does not require blame to be shifted.

10. Can I marry immediately after a Divorce?

You can remarry after divorce as long as your divorce order has taken effect. A divorce usually takes effect one (1) month and one (1) day later after the divorce is granted by the Court. It is illegal to remarry until your divorce becomes final.

Once a divorce order has granted made by the Court at the hearing your divorce will become finalised one (1) month and one (1) day later after the said hearing. You cannot remarry until the finalisation of the divorce after the hearing.

What Next?

Make an appointment with an experienced Family Lawyer at Lindbloms Lawyers to find out how we can help you through the process of a Divorce.