Many people use the word “divorce” to describe all issues associated with a breakdown of their marriage. In fact the divorce is simply an official Order to bring the marriage to an end. It is a separate issue from matters such as living arrangements for children, and division of property.
The sole ground for divorce is “the irretrievable breakdown of marriage as evidenced by having lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of filing the application”. The period of separation commences from the time that at least one of the parties makes a decision that the marriage has come to an end and at the same time takes the step of living separately and apart. Separation may therefore occur even if it is the other party’s desire for the marriage to continue. In certain circumstances the period of separation may comprise two separate periods. Separation may be under the one roof provided the parties actually live separate lives, and may occur even in circumstances where one party renders some household services to the other.
If there are children of the household under the age of 18 years, before granting a divorce, the court must be satisfied that proper arrangements in all the circumstances have been made for their care, or that because of the particular circumstances of the case, the divorce order should be granted even though the court is not satisfied as to the arrangements for the children.
Applications for divorce are usually dealt with in Division 2 of the Federal Circuit and Family Court of Australia (FCFCOA) and are usually listed for hearing within about 6-8 weeks of the application being filed. It is anticipated that the current practice of the court sitting via Microsoft Teams or if not available, by telephone, will continue. After filing, the application needs to be personally served on the other party. The Divorce is usually granted on the first hearing date, and it usually becomes final within a further one month.
Where there are no children under the age of 18 years the process is reasonably straight forward and there is no reason why you could not prepare and file the application yourself as long as you are prepared to put in the time. Where there are children under the age of 18 years the process is a little more complicated and you may need the assistance of a solicitor. An information kit and application can be downloaded from the FCFCOA website and there is a link to that site from this. Although joint applications can be filed, the usual practice is that the party who files the application pays the filing fee together with solicitor’s costs if a solicitor is involved.
Where there are no children under the age of 18 years, the Court does not usually require an appearance of the applicant. The applicant must appear (or be legally represented) where there are children under the age of 18 years, and in other specified circumstances which will be advised by the Court.
It is vital to remember that if there is an issue as to property settlement, proceedings for Property Orders must be commenced within 12 months of a Divorce Order becoming final (although in certain circumstances, an extension of time may be granted).