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‘I want a divorce.’ So what does that mean?

I want a divorce - what does that mean?Recently, I had the wonderful opportunity to appear as a guest on Triple J’s National Relationships program, “The Hook Up”.  Even though that program focuses on young people, it got me thinking – do you really understand what it means when someone says “I want a divorce”?

From the statistical perspective, there are 311 marriages on average per day, and 132 divorces on average per day.  That means, statistically, 42% of the number of marriages in each year end up in a divorce.  Historically, the number of marriages each year are decreasing, but the number of divorces are increasing.

To get a divorce, you first have to have a legally recognised marriage under Australian Law.

Now, if you were married in Australia, this won’t be a problem.  For those people who are married overseas, you will need to make sure the marriage ceremony will be recognised for registration in Australia.  For same sex couples marrying overseas, the present state of our laws (noting the postal vote survey has not yet been completed) means that your marriage will not be recognised in Australia.

Next, you need to demonstrate that your marriage has broken down irretrievably.  The test for this is to show that you have been separated for a period of 12 months.  This can include periods of separation where you still live under the one roof, and there are even allowances for a short period of reconciliation.

Then, once you have evidence to prove the irretrievable breakdown, you can file an Application for Divorce with one of the Family Law Courts.  Typically, the Federal Circuit Court of Australia manages standard Divorce Applications.

You can make an Application jointly with your ex-spouse or if your ex-spouse does not want to participate then you can bring your Application in your own right.  You do not need to wait for your ex-spouse to agree for a divorce, once you have proved your 12 months of separation, the Court will grant you a divorce at your request – the Court will not keep the people married if they do not wish to be.

The divorce itself literally dissolves the marriage – the Divorce Application does not deal with your financial settlement, nor with the arrangements for the children.  These are separate matters that need to be dealt with in different ways.  Most importantly for you to know, is that you don’t need to wait for 12 months after your separation to get the finances and the parenting arrangements sorted out – you can reach an agreement or ask the Court for help if necessary about those sorts of issues at any time after separation.

So what are the consequences of your divorce?

Apart from dissolving your marriage, leaving you free to go ahead and marry someone else, there are some time limits that will start ticking by.  Once the divorce is finalised, there is only a period of 12 months where you can bring an Application to a Court to ask for help about financial settlement.  This is an important time limit to bear in mind, as once that time limit expires it is almost impossible to get financial relief from a Court without a great deal of cost and bother.

It’s always best to get some legal advice before you make an Application for Divorce.  The fact that time limits will start ticking by will mean that various other rights will be impacted.  In some cases, it is not in your interest to get the divorce and instigate those time limits.

We always encourage our clients to run their own Divorce Applications if they feel comfortable to do so.  It is one way our clients can save some money, because you do not need a lawyer to run an Application for Divorce.  However, what we do strongly recommend is that you do get advice to consider whether it is in your interest to start the time limit ticking, which is the natural consequence of your Divorce Application.  This can be done in a simple initial consultation, and can save you thousands of dollars by making a more strategic approach to filing an Application for Divorce at the right time for you.

Separation and contacting a Family Lawyer for the first time can be a scary step to take. Its something most of us never really want to do. To talk to us about an initial consultation contact us on 02 9523 3007 or CLICK HERE to submit your details. We’ve also created a complimentary online separation pathway questionnaire to help you find out where you stand by answering a few simple questions. CLICK HERE to get started obligation free.

antonella sanderson author