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The Divorce Application

There are a number of requirements to be met in order to obtain a divorce Order. The Court must be satisfied that as at the time of filing of the application for divorce:

  1. At least one of the parties to the marriage is an Australian citizen or domiciled or has been ordinarily resident in Australia for the preceding year.
  2. That the parties have been separated for a period of no less than 12 months and that the marriage has broken down irretrievably.
  3. The Court must be satisfied that where there are children under the age of 18 years of age, proper arrangements for their car, welfare and development have been made.

The requirements for divorce in addition to compliance with service requirements will be reviewed at the Divorce Hearing and if satisfied a Divorce Order will be granted.

The Divorce Hearing

Upon filing your Application for Divorce, your divorce lawyer will be advised of the date and time allocated for your divorce hearing.

Since the COVID-19 pandemic commenced, divorce hearings have been conducted electronically via Microsoft Teams video link or telephone link before a Deputy Registrar or Judicial Registrar. As they are conducted electronically neither yourself nor your divorce lawyer will need to attend the Court in person.

The divorce hearing process is made even simpler in some circumstances where electronic attendance by yourself or your divorce lawyer is not required if you do not fall within one of the exceptions.

There are some circumstances where electronic attendance by yourself or your divorce lawyer at the divorce hearing is required.

Electronic divorce hearing attendance is required only in circumstances where:

  1. A sole application is filed and there is a child of the marriage under the age of 18 years old;
  2. You have noted on your application that you wish to attend the hearing;
  3. A party has objected to the divorce being heard without the parties attending;
  4. The respondent has filed a Response to Divorce opposing your divorce application;
  5. If you are seeking substituted service or dispensation with service in the event that there are difficulties locating the respondent to serve the Court documents on them;
  6. Are required to provide additional affidavit material in relation to separation under the one roof, married for less than two years or there is a change in circumstances since filing the application.

Your divorce lawyer will be able to advise you if any of the above exceptions apply to you and if attendance at a divorce hearing is required.

Once a divorce is granted, the Divorce Order takes effect one month and a day from the day the Order is made at the hearing. From that time, the Certificate of Divorce will be made available on the Court Portal.

In the event that your divorce is not granted, your lawyer or yourself will be notified at the divorce hearing or the Court will contact yourself or your divorce lawyer to advise what else may be required and the next Court date allocated.

When do you need a divorce lawyer?

There are circumstances that may arise in the divorce process where the assistance of a divorce lawyer is recommended. These circumstances include if:

  1. Parties have been married for less than two years.
  2. The Parties cohabitation resumed following separation for a period of no less than three months.
  3. Parties have continued to reside under the one roof following separation
  4. A Response to Divorce has been filed by the other party.
  5. If you are unable to locate the other party to serve the Divorce Application.
  6. If either party has changed their name since they were married.

Some of the abovementioned instances may require further affidavit material of the parties and witnesses, further supporting documentation and may also require further electronic Court attendance by yourself or your lawyer.

The impact of obtaining a Divorce Order on other aspects of your family law matter

It is important to know that the granting of a divorce does not deal with or conclude parenting and property arrangements. To obtain orders in relation to parenting and property matters a separate process is required.

Another important impact of divorce to consider is the time limitation that is imposed following the granting of a divorce.

Once a divorce is granted parties have 12 months to file an application with the Court to commence proceedings in relation to property and spousal maintenance.

Unless agreed between the parties, there are some limited circumstances the Court can grant leave to commence proceedings out of time.