By Andrew Banna, a Principal of Matthews Folbigg, in our Family Law Group.
If you have been married for less than two years and you decide to divorce, there are a few things for you to consider with a divorce lawyer. A divorce application is not to be filed within two years after the date of marriage without the leave of the Court. When establishing how the two years is calculated, it is determined from the date of the marriage to the date of applying to the Court for a divorce. You and your spouse must also have been separated for at least 12 months before applying for a divorce.
What do you need to do to get around this?
If you have been married less than two years and want to apply for a divorce, you must either:
- Attend counselling with a family counsellor or nominated counsellor to discuss the possibility of reconciliation with your spouse. OR
- If you have not attended counselling, seek permission of the Court to apply for a divorce. You seek this permission by filing an affidavit with your divorce application.
What is an affidavit?
An affidavit is a written statement of truth prepared by a party or witness. It is the main way you present evidence (facts of the case) to the Court. You must swear or affirm the affidavit before a person authorised to witness affidavits; for example, a lawyer or JP.
A divorce will not be successfully filed unless a certificate is filed with the application stating that the parties have considered a reconciliation with the assistance of an approved family counsellor, signed by that counsellor: s 44(1B). Or if the Court is satisfied that there are special circumstances that go towards why the matter should proceed where the parties have not considered a reconciliation.
The Court may grant leave for the application to be filed or (if it has been filed) declare that it is so satisfied: s 44(1C).
Prior to applying for a divorce it is recommended that you seek legal advice. Speak to our Accredited Family Law Specialists today to guide you through the process, assist you in preparing your affidavit and to ultimately provide you with divorce advice to simplify the process and ensure your application is successfully filed. Our Accredited Family Law Specialists are able to look at the best outcome for you and give you divorce advice to ensure your interests are well looked after.
For more information, visit our page on Separation and Divorce.
For advice contact us on 1800 300 170 or email us at famlaw@matthewsfolbigg.com.au
Disclaimer
Family law situations can be complex and sometimes they can involve serious issues. Information outlined is proposed to provide general guidance only. Due to the seriousness of legal matters as well as the uniqueness of your individual situation, professional advice should be sought. For advice, please contact one of our Family Lawyers.
