Divorce Fact Sheet

If you want to apply for a divorce, what is involved?

Getting a divorce is a simple procedure. So long as you can satisfy the Federal Magistrates Court that you and your spouse have lived separately and apart for at least twelve months, and that there is no reasonable likelihood of getting back together, the divorce should be granted.

Living separately and apart does not require you and your spouse to be living in different houses, so long as you can show that the relationship has ended.

Also, where there are children under eighteen years of age you generally have to show the Court that “proper arrangements” have been made for them. For example, their living arrangements are satisfactory and that the parent with whom the children are not living is spending time with the children.

If you separate, resume living together and then separate again, you can commence the calculation of the twelve months separation period from the beginning of the first separation period as long as there is only one resumption period of up to three months (but the resumption period cannot be included in the twelve months).

We often get asked the question - “do I need to get a divorce...?”

That’s a personal matter, but we recommend you bear in mind these three important points:

• The only reason you must get a divorce is if you want to remarry;
• Immediately upon separation you can take action about all other matters ie. property settlement, spousal maintenance, arrangements for children and child support. You do not have to wait until you are divorced.
• Court proceedings for property settlement and/or spousal maintenance need to be commenced within 12 months of the divorce order taking effect. Outside of this period you need to seek special leave from the Court to proceed with a case for property settlement and/or spousal maintenance.

When Divorce is Final
The divorce is not usually final at the Court hearing. If the Court finds that the separation requirements are met it makes a divorce order but this does not usually take effect until one month and one day after the hearing. You cannot marry until the divorce order takes effect.

Federal Magistrates Court (FMC)
Divorces are dealt with by the FMC rather than by the Family Court. For step-by-step instructions on how to apply for a divorce go to www.familylawcourts.gov.au

Your Will
The changes in your circumstances brought about by separation and divorce means that reviewing your Will is essential. We recommend that you read our Fact Sheet “Wills & Family Law”

Our Family Law Team have the understanding and experience to listen carefully to your problems and explain things clearly. If you have any questions please call Alan Wright, Warwick Gilbertson, Rebecca Flick, Matthew Carney or Stephen Bourne on 02 4904 8000...your starting point to peace of mind.


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Disclaimer - This article is offered for general information purposes only. It is not offered as and does not constitute specific legal advice or opinion. The accuracy of the information is not guaranteed. You should not act or rely upon any of the information contained within this article without seeking the advice of a qualified solicitor who specialises in the particular area of expertise and jurisdiction that you require.