Divorce

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Divorce

If your marriage has irretrievably broken down and you have been separated for over 12 months you,  can apply for divorce with the Federal Circuit and Family Court of Australia.

The Courts have jurisdiction to grant a divorce if either you or your spouse :

  • are ordinarily a resident in Australia;
  • are an Australian citizen; or
  • regard Australia as your permanent home.

Can you be separated while living under the same roof?

Yes. However, you will have to convince the Court that even though you remained living at the same house, you were genuinely separated. We need to provide good evidence to the Court to prove this.

What occurs after we file your application for divorce?

The Courts will fix a hearing date, typically within 2 months from the date of filing. A copy of the application for divorce must then be served on your spouse at least 28 days before the hearing date. You are not permitted to serve the divorce application on your spouse yourself, for obvious reasons.

On the hearing date, the Court will determine whether to grant the divorce. When granted, the divorce order will not take effect until one month and one day after the date of the hearing. This is an old-fashioned rule designed to allow people to stay married if they change their minds within one month of the divorce hearing, even though this is almost unheard of.

What are the implications of a divorce order?

A divorce order can have unexpected consequences for your financial affairs, including:

  • Limitation period – From the date of the divorce order taking effect, an application for property settlement must be made within 12 months, unless the Court orders otherwise.
  • Will – Your ex-spouse is cut out of any will made before the divorce. This can result in messy consequences, where your will may leave some or all of your estate to nobody. You should consider getting a new will. In fact, as soon as your marriage has broken down, you should review your will.

What about my children, finances, and property?

A divorce does not resolve issues about finances, property and maintenance, or parenting arrangements for your children.

You can make arrangements for these issues by:

  • participating in dispute resolution to settle or narrow the issues in dispute;
  • negotiating an agreement with your former spouse. This is either done through an application for consent orders, parenting plan or a binding financial agreement; or
  • seeking interim orders from the Courts, if you are unable to reach an agreement.

The specialist family law solicitors at Somerville Legal can handle all aspects of your divorce, including preparing the application, filing it with the Court and serving it. You may not even have to attend Court, and we can have your divorce through the court system within just a few weeks.

If you would like our assistance, please contact Peter Lacivita or contact us on (02) 9923 2321 or enquiries@somervillelegal.com.au