How long do I have to wait before I can file for divorce?Feb 7, 2019 5:19:12 PM
Is your marriage going through a rough patch? Whether you and your partner have already separated or you are considering a break up, timing plays a key part in divorce proceedings. For the best chance of your divorce being granted, you need to make sure you are doing things properly or you could face delays.
When can I apply for divorce?
A divorce may be granted if a marriage has broken down and there is shown to be no reasonable likelihood that you and your former partner will get back together. To demonstrate that this is the case, you must already be living separately and apart for at least 12 months and 1 day. Your former partner may oppose a divorce if you have not been separated for that length of time.
It is possible to live in the same home as someone but still be separated if you can prove that you are both living separate lives. This is called separation under one roof.
If you have children under 18 years old, you need to have finalised parenting arrangements before a divorce can be granted. Those arrangements may be formal or informal.
If you have been married for less than 2 years, you will need to attend a counselling session with your spouse so that you can file a counselling certificate. This confirms that the marriage has irretrievably broken down and cannot be rekindled.
How do I file for divorce?
If it has been more than 12 months since your separation, you can complete an online Application for Divorce. This carries a fee. Online application is not currently available for same sex couples, who should contact the National Enquiry Centre.
To apply for divorce in Australia either you or your former partner must be an Australian citizen, plan to live in the country indefinitely, or ordinarily live in Australia and have done so for the past 12 months.
You can make a sole application by yourself or a joint application with your spouse. In most cases, you do not have to attend court unless you file a sole application and have children under 18.
If your divorce is granted, divorce orders normally take effect 1 month and 1 day later.
Should I seek legal advice?
You can prepare your own divorce application but talking to a family lawyer could help you to better understand your rights and responsibilities and how Australian family law applies to your situation.
Limited free legal services are available from Legal Aid, but if you need to attend court, if there are children in the marriage or if you have property or assets to divide, you may prefer to hire an experienced family lawyer so you can benefit from their knowledge and expertise. Parenting arrangements and property settlement are separate arrangements that need to be dealt with independently.
To find out more about how family support lawyers can help you through separation and divorce if you have children, download our free ebook Separation and Divorce: Putting Your Children First.