Separation and Divorce

Getting divorced can be a stressful and emotionally trying experience. Thankfully, you can file a divorce application quite easily in most cases. In Australia we have established the principle of no-fault divorce, which means that the Court does not consider why the marriage ended. The only grounds for divorce is that your marriage has broken down and there is no reasonable likelihood of reconciliation.

Separation

Before you apply for divorce, you and your ex-partner must live separately for a period of 12 months and 1 day (or longer) to show the Court that your marriage has broken down irretrievably. 

This can add to the stress of your situation especially if you cannot afford to live separately. If that happens to you, it is possible to live under the same roof while being legally separated, though it can be complicated. You will need to be able to show the Court that you have been leading separate lives and you may have to produce witnesses to testify to this in Court. You will also need to prepare and file an affidavit to prove that there has been a change in the status of your marriage. It is a good idea to get advice from a divorce lawyer at the time you separate to ensure your separation is legal. 

Applying for divorce

All divorce matters are settled by the Federal Circuit Court of Australia. You can make an application online, either by yourself (sole application) or together with your ex-partner (joint application). Before you proceed, you need to ensure that you’re eligible to apply for divorce. To be eligible you must be a citizen or resident of Australia and have been separated for 12 months and 1 day or longer. 

You will also need to produce your marriage certificate. Other matters to consider will include how you will divide your assets such as the family home, your savings, shares and other investments. If you have children under 18 years, it can complicate matters in terms of child custody and maintenance. 

While you can prepare your own divorce application, we recommend that you engage a lawyer to make sure that your interests and property are protected. 

What can we do for you

At Elamine Lawyers, we understand that separating and getting divorced is a difficult experience. If you have children under the age of 18, custody arrangements can be a source of additional anxiety. Our Family Lawyers are sensitive to your situation and will help make the process go smoothly while protecting your interests. We can guide you in:

• Understanding what is involved when you decide to separate or divorce;

• Making sure your separation is legal;

• Understanding your rights with regards to child custody, maintenance, and property settlement;

• Making your divorce application;

• Negotiating custody and child support payments;

• Negotiating financial settlements and maintenance; and

• Representing your interests in Court if required.