We’re Separated. It’s Time To Move On. What Now?

Although the statistics for divorce suggest it is becoming more common nowadays, it is nevertheless a difficult time for those going through it. What follows is a (very) brief overview of what happens after a married couple separates and wants to divorce.

Have you been separated long enough?

Before a divorce application can be made, the parties are required to have been separated and living apart for a period of not less than 12 months. It is possible for an application to be made if the parties have separated but continued living together however there must be proof that there has been a breakdown of the marital relationship.

We meet the preconditions. What now?

Divorce applications can be completed by a solicitor or by yourself if you choose to self-represent. A filing fee is payable when lodging the divorce application with the court however applicants with a grant of legal aid or holder of a Centrelink card can apply for a reduction of this fee. If both parties are agreeable to the divorce, a joint application can be made.

Once the application has been lodged, it is required to be served on the other party either by post, process server or electronically and must be accompanied by a form called “Acknowledgment of Service”. It is also a requirement to show proof of service usually via an Affidavit.

Is there a fight? How is it resolved?

A divorce application can only be opposed on the basis that there has not been a period of 12 months of separation of the court does not have jurisdiction.

A hearing will be set down whereby it is required to be proved that a marriage existed (this is usually already done at the filing stage by way of marriage certificate), there has been an irretrievable breakdown of marriage, service of the application has been effected and that proper arrangements have been made for any children under the age of 18. Your lawyer will usually attend the hearing on your behalf unless there are children under 18 in which case you will also be required to attend.

The divorce order will be made at the hearing if the court is satisfied of the above and will take effect 1 month and 1 day after the hearing at which time both parties are free to re-marry.

What about the house? What about the children?

These need to be dealt with separately by a Court or by Consent, and a Divorce application will not resolve these issues. A Divorce application being finalised will also not automatically revoke your Will – if you don’t want your worldly possessions to be passed to your former partner should you pass away, ensuring you have a new Will prepared is essential. If you instruct a lawyer, they should advise you on all of these issues and how to resolve them.