BUTLERS

Yes, you can apply for a Divorce Order if proceedings have already been commenced in different areas in the Family Court, or if they have not.

Simply objecting to your Application for a Divorce Order is not a valid ground to oppose it. The consent of your former partner is not required for a Divorce Order to be granted.

Attendance at the Divorce Hearing is not required in all cases.

Depending on the circumstances, attendance by you at the Hearing may be recommended to ensure that the Application is granted, even if attendance is not strictly required by the Family Court.

The total cost and the time it can take for a Divorce Order to be granted can vary depending on your circumstances.

For example, if the Application is being made by you alone, it will need to be served on your former partner, which can incur fees, such as fees for a process server to serve the Application.

At Butlers a family lawyer could charge anywhere from $330 to $600, plus GST, an hour. The hourly rate depends on, among other things, the family lawyer's experience and the complexity of the case. Before we commence any work on a case, we require a signed costs agreement and funds in our trust account to be used for payment of future accounts. The initial funds required could be as low as $1000 or as high as several thousands of dollars, depending on the complexity or stage of the case.

You can file a Response to the Application if you dispute the facts set out in the Application. Disputes can arise where you disagree with the date of separation listed in the Application, or the way the arrangements for your children have been described.

The only ground for Divorce is “the irretrievable breakdown of a marriage”. This can be shown by you and your spouse having separated and then living separately and apart for the 12 months immediately preceding the filing of the Application for a Divorce Order.

It is not necessary to establish the cause of the separation or to demonstrate who was responsible for the breakdown of the relationship.

If there are children of a marriage, who are under the age of 18, the Family Court must also be satisfied that proper arrangements have been made for them.

There may also be certain jurisdictional requirements that you or your former partner need to meet, depending on personal circumstances.

The requirement to serve your former partner personally with your Application for a Divorce Order can create difficulties in some circumstances. You may not know where your former partner is, your former partner may live in another country or your former partner may be avoiding service deliberately.

Whatever the reason, if personal service cannot be effected, you may be required to make a separate Application to the Family Court before the Divorce Hearing, to seek that your former partner be served in a different way, or not at all.

That appropriate arrangements have been made for the care, welfare, and development of the children under the age of 18. ‘Proper arrangements’ does not necessarily mean that you and your former partner must be satisfied with the parenting arrangements for your children at the time the Divorce Order is made.

If the Family Court is not satisfied that all the requirements have been met at the time of the Divorce Hearing, the Divorce Order will not be granted. A further Divorce Hearing date may be listed, or your Application may be dismissed altogether.

You may still be able to apply for a Divorce Order if you continued to live with your former partner in the 12 months immediately before the Application for Divorce was filed.

In these circumstances (commonly known as “separation under one roof”) you are required to provide additional information to the Family Court to prove that you and your former partner separated on the relevant date. The Family Court will not grant the Application unless sufficient information is provided.

Whether parties have ‘separated’, and exactly when the separation took place, can be a complicated question. No single factor is determinative in deciding whether parties have ‘separated’, and every case will be determined on its own facts.

If you have been married to your former partner for less than 2 years, you and your former partner are usually required to participate in marriage counselling and obtain a certificate from the counsellor to provide the Family Court with the Application.

In certain circumstances, you are still able to apply for a Divorce Order if you reconciled with your former partner, during the required 12 month period of separation. This is to encourage recently separated parties to attempt to reconcile, without the fear that they would ‘reset the clock’ if the reconciliation is unsuccessful.

Applications for Divorce can be made in 2 ways; either by you alone or by both parties, jointly. Whichever way that the Application is made, it must include background information and details of your children, if they are under the age of 18.

An Application for a Divorce Order must be filed with supporting documents, such as a copy of the Marriage Certificate or a copy of your citizenship and a filing fee must be paid.

After the Application is filed and accepted by the Family Court, a date for a Divorce Hearing will be set, which you may be required to attend.

At the Divorce Hearing, a judicial officer of the Family Court (usually a Registrar) will determine whether certain requirements have been met. If satisfied, a Divorce Order will be made.

A Divorce Order takes effect 1 month and 1 day from the date of the Divorce Hearing.

Both Marriage and Divorce invalidate an existing will. In circumstances where you have recently married or divorced, you must prepare a new Will.  However, more importantly, we strongly advise you update your Will following separation to avoid a situation where your ex-spouse will potentially gain control of your Estate in the event something unforeseen happens to you.  We recommend you speak to one of our Wills & Estates Team to prepare an interim Will.