‘I want a divorce, but I don’t know what I need to do next.’ We’ve written this article to shed some light on practical information you need to know if you are resolved in your decision.
By Tylah Coskerie , Associate at Watts McCray, Sydney
A divorce is the legal end of a marriage, and here in Australia, we have a ‘no fault’ policy. This means that when the Court is granting a divorce, they do not consider the reason why the marriage has ended.
Importantly, the granting of a divorce does not determine any issues of parenting, financial or property settlement. It is merely the formal recognition that the marriage has ended and no more.
Therefore, neither spouse need to establish whether the other did or did not do something which has caused the breakdown of the marriage. The only ground for a divorce in Australia is that the marriage has irrevocably broken down and there is ‘no reasonable chance’ that the parties will get back together.
Therefore, if you are seeking a divorce, it is important to understand that there are a few pre-action procedures that need to be undertaken.
I want a divorce: What do I need to do first?
If you are seeking a divorce, it is important to understand that there are a few pre-action procedures that need to be undertaken.
- You must satisfy the Court that you and your spouse have lived separately for at least 12 months, and there is no likelihood of resuming married life. You are able to live separately under one roof.
- Same-sex couples are also treated in the same manner as other married couples and can apply for a divorce if the marriage is recognised in Australia.
- If you were married overseas, you must provide the Court with a copy of your marriage certificate in English. If your certificate is not in English, you will need an affidavit translating the marriage certificate from a certified translator.
- If there are children of the marriage who are under the age of 18 years, then a Court will only grant a divorce if it can be satisfied that there are suitable parenting arrangements in place. This will need to be provided to the Court in the Application for Divorce and should contain sufficient detail about how the children will spend time and communicate with each parent, how they will be financially supported and what plans will be in place for their health and development needs.
What’s next?
As the granting of a divorce does not determine any property, financial or parenting arrangements, it is important to ensure that these other areas have been sufficiently addressed before seeking a divorce. Why, because once a divorce has been granted, there is a time limitation that commences. This means that property and financial matters must be commenced within 12 months of the divorce order taking effect.
