According to the law, “an application under this act for a divorce order in relation to a marriage shall be based on the grounds that the marriage has broken down irretrievably.” This means that the law does not consider which partner was at fault in the breakdown of the marriage. The couple just needs to demonstrate that their relationship has irretrievably broken down and that they have been separated for twelve months. The law also clearly states that when a Divorce is finalised for a couple, there are no longer reasonable possibilities for them to ever get back together.
Divorce is an important issue to tackle, especially with the burden and consequences it brings to the husband and wife and their children, if any. Australia’s laws for filing and pursuing a divorce ensures equality for both parties and does everything in its power to make sure the husband and wife part ways in good terms. The court also makes sure that despite the divorce, the children’s welfare remains a top priority for the separated parties.
Who can apply for divorce in Australia?
There are three important requirements before a couple can file for divorce in Australia. First, both the husband and wife must be Australian citizens either by birth, descent, or after being granted an Australian citizenship. Second, both parties must have lived in the country for at least 12 months. Third, they must consider Australia their home.
The Federal Circuit Court of Australia oversees most divorce cases in the country, from the moment of filing until its finalisation. The court will be the one to decide whether to proceed with the divorce or reject it. It is up to the parties involved to convince the court that there is no longer any reason or possibility for the marriage to be mended and for the problems to be resolved. It is also stated in the Family Law Act of 1975 that a court can reject a divorce application if there are sufficient and satisfactory reasons for the parties involved to continue living together or co-habitating.
There is a designated fee for a Divorce application and it is valued at $865. This fee can be reduced, but a party should first submit the requirements and be eligible for the fee reduction. More fees will be required once the divorce proceedings start.
Couples who have been married for less than two years need to obtain a counselling certificate as part of the Federal Court’s Divorce Application. On the other hand, if the couple has been separated but still live in the same residence for any part of the twelve months prior to the divorce application filing, then the parties have to provide additional evidence that the marriage is no longer the same by filing an affidavit. Whether the divorce application is filed individually or jointly, a third person must be asked to file an affidavit as corroboration of the evidence.
When it comes to serving the documents, if you file the divorce application as a sole applicant, then you must serve the divorce application to your spouse. However, this is no longer needed if the couple jointly applied for the divorce. On the other hand, if you cannot serve the document to your spouse despite your efforts to locate them, then apply for substituted service or an order to dispense with service.
It is important to seek legal advice before filing the divorce for you to become aware of their rights and responsibilities. Divorce cases are also not the same as the others, which means that each case has different grounds or elements for consideration. A divorce lawyer will make sure you know what you are getting into and how you are going to get there.
Australia’s Family Relationships Advice Line (FRAL) offers free legal advice to Australians and also provides information about the available legal services for divorce cases. Both parties involved should have their own divorce lawyer for the application to proceed.
Independent Children’s Lawyer
With the divorce or separation underway, it is also important for parents to make sure the welfare and the interest of their children are being considered. Parents have their divorce lawyers whilst children have the ICL or Independent Children’s Lawyer.
This group of lawyers represents the children in divorce proceedings or establish parenting orders between the divorced husband and wife. It is clearly stated in the Family Law Act of 1975 that despite the divorce or separation, parents should still be responsible for taking care of their children until they reach the age of 18. This means that they should continue to provide financial support and emotional care to their children. They should also make sure that they are always there when the children need them.
Finalising the Divorce
With the Divorce order being finalised, the court’s Registry Manager who made the order must make and submit a memorandum with the date and other details of when the Divorce order will take effect.
Before the Divorce becomes finalised, it is important for the divorcing parties to have already established an agreement on how they will address the needs of their children who are below 18 years of age.
It is unfortunate for a marriage to end, but if the couple has no other recourse but to file for divorce, then the services of a good lawyer will really help make this transition easier, not just for the divorcing parties but for the children as well. Seek out the best legal professionals to ensure that you get expert advice.
FC Lawyers has a team of experts with years of experience in handling divorce cases. Contact our team today to discuss your family law matters.