Divorce is a deeply human event that, emotionally and legally, may sometimes be difficult. The Australian Legal Framework Act 1975 is the defining source for divorce law in Australia. The legislation, which follows the principle “no-fault system”, assumes that the mere occurrence of dysfunction is the sole ground for a marital break-up.
Legal Requirements for Divorce in Australia
To apply for a divorce, you or your spouse must meet the following criteria:
- Be an Australian citizen (by birth, descent, or naturalization).
- Have a permanent home in Australia and have made the intention to live there indefinitely, or
- Stayed in Australia for at least 12 months prior to applying for divorce.
If you need professional legal guidance, Divorce lawyers Sydney can provide expert assistance in handling your divorce case.
As an additional mandatory condition, the marriage also has to be valid under the laws of Australia. On the other hand, if you get married abroad, you might require the translated and legalized marriage certificate. The main condition involving the divorce is that the couple should have been apart for at least 12 months to prove that the marriage is in an irretrievable state of wreckage.
Though the common practice of separation is not living together, separation can occasionally happen under the same roof, under certain circumstances, and yet it is still not a legal ground for a divorce the evidence just can be one portion of it (i.e. you two are no more financially dependent on each other, and you don’t have a common-law marital relationship). If you need professional legal guidance, Stewart Family Law can provide expert assistance in handling your divorce case
The Divorce Process in Australia
1. Filing for Divorce
A divorce application can be filed either individually (you as the sole applicant) or jointly (you as the joint applicant) with your spouse. In case of a sole application, you should give your spouse the divorce papers which are to be served to him/her at least 28 days prior to the court hearing.
2. Attending the Hearing
In all situations where the children still not reached the age of 18 are involved, hence, at least one spouse has to attend a court hearing. On the other hand, if there are no children that are part of the divorce, it may not be a requirement to hold a hearing.
3. Divorce Order Finalization
Once the court has received the application and decided that it fits their predefined criteria, then the conclusion to grant the order will be signed by the court and the divorce will be final one month and one day after the order.
Key Issues in Divorce Proceedings
Although getting a divorce can be a relatively straightforward process, it does not mean that the settlement of other legal issues like property division, spousal support, and child custody is also simple. These matters need separate applications and negotiations.
- Property Settlement
In other words, divorce does not automatically mean the division of assets and liabilities between the spouses, rather the property settlement should be negotiated through a mutual agreement, a mediation, or a court intervention. They also take into account the following factors:
- The financial contributions made by each spouse
- The respective non-financial contributions (e.g., homemaking, childcare)
- The future needs, namely age, health, and earning capacity
- Spousal Maintenance
If one of the spouses does not have enough financial support, they may be required by the court to financially support their ex-spouse. For example, the considerations about spousal maintenance such as the difference in income, health conditions, and caring responsibilities for children are the factors courts look at.
- Child Custody and Parenting Arrangements
In case of disagreements between the parents, the courts give the highest priority to the child’s well-being and patience. In fact, the judges mainly recommend amicable discussions among the two parents concerning parental responsibilities to avoid interfering in their child’s life until the reasonable causes of the safety and welfare of the child are brought into question.
Common Misconceptions About Divorce in Australia
1. Divorce Automatically Settles Finances
There are many who think of a divorce as a settlement of finances that were done among each other.
But, in reality, both the spouses applying for the divorce must also state whether they want to divide their property and not just grant the divorce to either at first instance.
2. Infidelity Affects Divorce Outcomes
Infidelity by a partner, so-called relational damage, and their contribution to the asset division and divorce process are some of the matters that you may want to talk about with your family dispute resolution practitioner.
Details regarding the fault grounds set out in the divorce will remain confidential and it will not affect any property division or spousal support matters and it will not play a role in child support.
3. One Spouse Can Refuse a Divorce
They may disagree about arrangements like parenting and property. a spouse will be able to prevent the divorce only if there is a legal argument in favor of it.
Furthermore, a spouse who meets the legal criteria to get a divorce cannot keep the divorce from happening, but he can argue on particular details, such as alimony and child custody.
4. Mothers Always Get Custody of Children
The courts should always encourage a sustainable and cooperative relationship between the child and both of his or her parents even if the involved parents are divorced and after the healing of injuries if any.
Courts have the obligation to focus on the best interest of the child in child custody disputes and will consider many factors in the determination of custody like the physical ability of each parent to provide daily care for the child and the financial ability of each parent relative to the child’s support needs.
Final Thoughts
Adopting alternatives to court can be a means of solving disputes faster and with certainty of cost and outcome. One of the side effects due to prolonged problem solving in court is the high cost, fear, & depression. alternatives like mediation and family dispute resolutions are cheaper, engender less stress, and have slow growth and emotional turmoil than long-standing legal wars.
William Gall is a seasoned attorney specializing in civil litigation and family law. With a legal career spanning over two decades, William has built a reputation for his meticulous attention to detail and his unwavering commitment to justice. In addition to practicing law, he is a prolific writer, contributing regularly to various legal blogs where he shares his insights on current legal trends, case law, and best practices. His articles are well-regarded in the legal community for their thorough research and practical advice, making complex legal concepts accessible to both legal professionals and the general public.