One year of separation is required before applying for divorce
"I want to get a divorce as quickly as possible. What can I do to speed things up?"
Many people want to get divorced as soon as they can, so they can move on with their life.
But there are legal matters you should consider before rushing through the divorce process.
Under family law in Australia, in order to apply for a divorce you must have been separated from your spouse for at least twelve months, and state to a court that the marriage has irretrievably broken down.
Generally, but not always, "separation" for the court means living apart for those twelve months. There is no such thing as an immediate divorce in Australia.
When does the separation period legally start?
The legal requirement of separation starts when one partner tells the other the relationship is over. The other person does not have to agree for the separation period to start.
The 12-month separation period starts at that moment, even if you are still living under the same roof.
If you are still under the same roof you will need to say in an affidavit that there has been a change in sleeping arrangements, reduced shared activities, division of finances, and whether friends or family can attest to the separation.
It may be tempting to agree on a property settlement quickly after you have separated, but it would be wise to get legal advice from a divorce lawyer before you get to this point, so you can protect yourself emotionally and financially.
Financial and property settlements can be complex, in particular when there is a dispute over custody of children. A family lawyer can help with these processes, including with negotiation and mediation to avoid the cost of disputing these matters in court.
What is the legal process for getting a divorce quickly?
The Family Law Act 1975 sets time limitations on the divorce process. A divorce application to the court can only be made 12 months after the date of separation.
If the court is satisfied that all legal requirements have been met, the court grants a divorce order. The order becomes final one month and one day later. You are now formally divorced.
An application to the court for financial orders must be made within 12 months of the divorce being finalised. For de facto couples, the time limit for applying for financial orders is two years after separation.
Where do I make a divorce application?
Divorce applications need to be made to the Federal Circuit and Family Court of Australia. You can apply jointly, or by yourself.
The applications can be filed online through the Commonwealth Courts website, which also provides advice. (Please see How do I file for divorce? – Federal Circuit and Family Court of Australia.)
If the split is not amicable and you need to use the courts to divide assets, the process could be tied up for years. It's far better to resolve matters through mediation, and your lawyer can help you reach a satisfactory conclusion.
Do I have to attend marriage counselling?
If you have been married for less than two years, you are generally required to attend counselling with a family counsellor and file a counselling certificate.
If this is difficult or impossible for either party, you can apply to the court for a divorce without the certificate.
Felicity Marchant
Family law
Stacks Law Firm
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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