The Family Law Act requires parties to be separated for 12 months before applying for a divorce. But you do not need to wait until you are divorced to settle your property and financial matters and make arrangements for the care of your children – in fact we advise parties to settle financial matters sooner rather than later in most instances.
There are a variety of ways to apply for Divorce and we can advise you about your Application. You may want to file a Divorce Application yourself. We can help you with this. Or, you may prefer for our team to prepare the Divorce Application, serve it on your spouse and finalise the divorce process for you – including appearing in court if necessary.
Some Divorce Applications require additional documents, for example where you have continued to live together in the same house after separating. In these situations, we can prepare the necessary documentation and attend court to finalise your Application.
If your spouse has filed a Divorce Application, we can help you respond to or oppose the Divorce Application if necessary.
When can I apply for a divorce?
Divorce is the legal end to a marriage. It is important to remember that “getting a Divorce” is not the same as a “property settlement“. They are two different processes.
The only ground for divorce is “an irretrievable breakdown of marriage” which requires living separately and apart for 12 months. You can only file an application for divorce after the 12 month period has expired. In some situations, the Family Court may grant a Divorce Order despite parties continuing to reside under the one roof, or where the parties have reconciled for a brief period of time during that 12 month period.
It is not necessary to wait to the expiration of the 12 month separation period before discussing financial settlement options and we recommend that you seek advice sooner rather than later to safeguard your financial position.
We can assist you with preparing and filing your Application for Divorce, any supporting documents required to prove ‘separation under one roof’ and appear on your behalf in the Family Court if necessary.
Do I have to go to court?
Going to court can be time consuming, stressful and expensive. The good news is that you do not have to go to court to resolve a family law dispute. We recommend that parties go to court as a last resort only. There are a range of alternative services available to parties such as family dispute resolution, mediation and arbitration.
Sometimes Court is necessary despite a partners’ reluctance to involve the Family Court. This may be where there is an urgent need to protect children or property.