We are available to assist with preparing and lodging or responding to an Application for Divorce. Whilst an Application for Divorce is not normally a difficult process, sometimes problems arise and we are happy to step in to assist you in resolving these problems.
In Australia an Application for Divorce must be filed in the Federal Magistrates Court. It does not matter whether you were married in Australia or overseas, as long as you are able to satisfy one of the following eligibility requirements:-
- you are an Australian citizen;
- you ordinarily reside in Australia;
- you have lived in Australia for 12 months immediately preceding filing the Application;
- you regard Australia as your home and intend to live here indefinitely.
- Australia’s divorce process is a “no fault” process and accordingly, the only requirement before filing the Application is that you and your spouse have been separated for 12 months before filing the Application.
If the court is satisfied that you are married, have been separated for 12 months and there is no prospect of reconciliation a Divorce Order will be made.
Some specific issues which can arise with regard to an Application for Divorce include:-
- when you and your spouse have been separated under the one roof;
- when you cannot find your spouse to serve them with the Application for Divorce;
- when your marriage is of less than 2 years duration at the time of filing the Application for Divorce;
- when you or your spouse do not believe that you have been separated for longer than 12 months.
In each of these instances, we strongly recommend that you seek legal advice as to what steps can be taken to ensure the Application for Divorce proceeds smoothly.
Some frequently asked questions regarding Divorce
Will I have to appear in Court?
Whether or not you have to appear depends on the circumstances of your Application.
If there are children under the age of 18 and the Application is not made jointly by you and your spouse, then yes an appearance by you or your legal representative will be required.
Also if you are alleging separation under the one roof, it is likely the Court will expect an appearance by you or your legal representative to answer any questions the Court has about your separation.
In some circumstances, the Court is prepared to permit an appearance by telephone and if appropriate we will make that application on your behalf.
What costs are involved?
In addition to any legal costs, the Federal Magistrates Court charges a filing fee for the lodging of the Application for Divorce, which can be reduced if you are in receipt of some Centrelink benefits or have a Concession Card.
To obtain information as to the filing fee, go to www.federalcircuitcourt.gov.au and follow the links to the “Fees” page.
Do I have to be divorced to make arrangements to divide our property?
No. Divorce and Property Settlement are two different legal matters and are not dependant on the other.
Divorce however affects property settlement matters by triggering a time limitation period, which if lapsed, can cause you difficulty in making a Court Application for property settlement or spousal maintenance.
This time limitation period commences to run once your Divorce Order is final (one month and one day after the hearing date) and if 12 months after your divorce is final, you have not yet finalised property settlement, you must obtain the Court’s permission before filing any Court Application.
If you are concerned about this time limitation period applying to you, please contact us without delay on 1800 621 071 or email [email protected].
Contact our Family Lawyers, Attwood Marshall and book an appointment today.
With four offices conveniently located at Kingscliff | Coolangatta | Robina | Brisbane, you can also visit an office near you or you can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.