UncategorizedWhen Should I Apply for a Divorce?

December 15, 2020

In Australia, we have a concept called “No-fault divorce”. You do not need a reason to divorce your spouse. The only ground for divorce is that the marriage has broken down irretrievably. The Court requires this to be demonstrated by a separation of at least 12 months.

It is immaterial if the parties remain living under the same roof if they are genuinely separated. There is no time limit on separation so a couple can stay separated for as long as they please. The only limitation is that neither of them can marry again until they are divorced.

Where there are children involved, whether they be biological children of either of the parties, adopted children or children for whom the parties have cared as a family member, the Court must consider whether adequate provision has been made for their care, welfare, and development.

There is no requirement that matrimonial property be divided between the parties before a divorce is granted but once the divorce has been granted you then have only 12 months to institute proceedings in relation to property without leave of the Court. For de facto couples there is a time limit of two years from the date of separation, essentially placing them in the same position as married couples. The main difference is that the time limit for instituting property proceedings is virtually unlimited for a married couple who are not yet divorced.

If the marriage lasted less than two years, the Court may require a signed certificate saying that the parties have considered reconciliation with the assistance of a person who is a family counsellor, or an organisation nominated by a family consultant or appropriately qualified Court officer.

If you are considering separating from your spouse, you should call to make an appointment with the Family Law team at A.L.F. Lawyers. We will be happy to provide you with advice and all the information you will need moving forward.

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