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Divorce means the ending of a marriage, and is separate to doing a property division and to making parenting arrangements for children.
There are some common misconceptions in relation to Divorce:-
- That you have to sort out your parenting or property settlement matters prior to filing your Application for Divorce.
- That both parties have to agree to apply for the Application for Divorce to be filed.
- That you can file your Application for Divorce as soon as you separate.
In Australia there is a no fault system of divorce with the only condition to seeking a Divorce is that the parties to the marriage have been separated for 12 months.
Once you have been separated for 12 months either the Wife or Husband can institute proceedings for Divorce. A joint application (signed by both parties) can be made if the parties agree to make the application. It does not matter if there is no agreement in relation to parenting or property settlement matters, you can file your application as soon as the 12 months after separation has expired.
Divorce Applications can be made while parties have been separated but living under the same roof, or where there has been a period of resuming the relationship and further separation.
A Divorce Application is filed in the Federal Circuit Court and there is a filing fee payable to the Court. In certain circumstances the Applicant can apply to the Court for a reduction in the filing fee.
Once the Application is filed in the Court, the registry will nominate a Court date.
If the Application is made solely by one party without the other party signing the application, it will need to be served on the other party. Service can initially be attempted either personally or by post, however, if the party being served does not sign and return an acknowledgement of service they will have to be served personally.
If you are the sole Applicant, and there are children under the age of 18, you will need to appear at the Court date. If there are no children under 18 the Court can consider the application on the papers without the need for either party to appear as long as service on the other party has been proved.
If you are a Respondent to an application and have been served with the application, you only need to appear in Court or file material in response of the application if you object to the Divorce being granted.
One month after the Court date the Divorce becomes absolute. The Court then posts the Divorce Order to the parties at their nominated address for service.
It is very important to remember that once your Divorce becomes absolute that you only have 12 months in which to institute proceedings for property settlement otherwise you will only be able to seek property settlement if you are given a time extension by leave of the Court (which may be refused or granted depending on the circumstances).