Applying for divorce can often be a traumatic and stressful experience. Whilst Australian family law can be complex and overwhelming, equipping yourself with the following information will likely alleviate some of your concerns.
1. Can I Apply for a Divorce?
If your marriage has broken down irretrievably you will need to ensure you meet a number of requirements prior to applying for a divorce in Australia.
Either you or your spouse must:
• regard Australia as your home country and have an intention to live in Australia indeterminately; or
• be an Australian citizen by birth or descent; or
• be an Australian citizen by grant of an Australian Citizenship; or
• currently live in Australia and have done so for 12 months prior to filing for divorce.
12 Months Separation
Your intention of separation must be communicated to your spouse and you must be separated for 12 months and 1 day prior to lodging an application for divorce.
Both spouses may be considered to be living separately and apart even if they are living under the same roof. If you and your spouse have separated but are living under the same roof for any period of your separation, there are additional requirements that must be met. For example, you must provide proof of your separation via a sworn affidavit. Typically, this must be substantiated by a third party.
If you have been married for 2 years or less, the court will generally not grant an application for divorce unless both parties have attempted reconciliation via counselling and obtained a counselling certificate. However, if there are special circumstances such as family violence or child abuse, then you may not be required to attend counselling.
2. How do I Apply for a Divorce?
Once you have met the above-mentioned requirements, you may apply for the divorce by yourself as a sole applicant, or with your spouse as a joint applicant.
You will need to apply to the Family Court of Western Australia by completing the appropriate form. You are required to complete an online application for divorce through the Commonwealth Courts Portal website.
Additionally, you must be prepared to provide information, if required, about what happened on the date of separation to demonstrate that you or your spouse intended to end the marriage and that there is no reasonable likelihood that you will get back together.
If you need any assistance with completing your application or are unsure if you have met the requirements you should seek advice from a family lawyer who has experience with divorce applications.
The filing fee for a divorce application occasionally changes, therefore it is best to visit the Family Court of Western Australia’s website to inform yourself of the current filing fee.
You may be entitled to a reduced filing fee if for instance, you hold a specific government concession card, have been granted legal aid or are under financial hardship.
3. Are Child Custody and Property Issues Considered?
A divorce does not resolve issues relating to dividing property and finances or parenting arrangements for children of the marriage. These will need to be dealt with separately.
If you have children under the age of 18 you must demonstrate that you have made proper arrangements for your children, as the Court will not grant a divorce until satisfied in this regard.
If you wish to deal with property or spousal maintenance issues through the Family Court with your former spouse, you must commence proceedings within 12 months from the date your divorce is finalised.
4. Do I have to Attend Court?
Attending Court for your divorce hearing is only required:
• if you have filed a sole divorce application; or
• you have a child to the marriage who is under the age of 18 at the time of filing the divorce application.
However, we advise you also attend if:
• you are intending on providing additional affidavit material in regards to separation under the same roof; or
• if you have been married for less than 2 years.
This short article provides general information about the subject matter. We recommend seeking professional legal advice from an experienced family lawyer in regards to your specific circumstances.
For any assistance call us on (08) 9335 9877 or complete the form below to request an introductory consultation.