Getting divorced in court

Do I Need to Go to Court to Get Divorced?

The only requirement for a divorce is the ‘irretrievable breakdown’ of a marriage. 

This is proved by the husband and wife having been separated for 12 months with no likelihood of getting back together. Your partner does not have to agree to the separation, however they need to know that you think the marriage is over. 

The court does not consider whose fault it was that the marriage broke down.

If your application is made jointly with your spouse, then you can avoid having to attend court for the hearing of your application for a divorce. 

How Do I Apply for a Divorce?

You can apply for a divorce together (joint application) or on your own (sole application). If you are making a joint application, you do not need to go to court. 

If you are making a sole application and your children are under 18 and were part of the family prior to separation, you must go to court, unless circumstances stop you from attending.

To apply for a divorce, you or your spouse must have been separated for 12 months and fit one of the following:

  • be an Australian citizen
  • live in Australia and regard Australia as your permanent home
  • ordinarily live in Australia and have done so for at least 12 months before the divorce application.

What Does the Divorce Process Involve?

If you apply on your own, you must arrange for the other person to be ‘served’ with the divorce application. Serving or ‘service’ is giving your ex-partner the divorce paperwork so they know about the court proceedings. 

You cannot personally serve your former partner but you can serve them by mail. The family law courts have special rules about the service of documents and forms to prove that the other person was served. 

You should allow several months from the time you file for divorce to the actual date of divorce. If there are problems with your application, it may take longer. 

At the hearing the court will grant a divorce order. Your divorce will not become final until one month after the hearing, at which time the court will issue a divorce certificate. 

Is it Necessary to Get a Divorce?

Are you wondering if a divorce is necessary, or if you can simply remain separated? 

You do not have to get a divorce when you separate unless you want to remarry, but staying married affects your rights and obligations in relation to financial matters. 

Seek Advice from A Professional Divorce Lawyer

While the process of applying for a divorce can be straightforward, with many people choosing to do their own, it can be complicated if there are children or property involved. There are also strict rules regarding service of the application on the other spouse that you will need to know about, and follow. 

For more information about divorce law, book an appointment with Robert Wood and Associates on (03) 9762 3877, or contact us online. Our team of qualified law professionals can provide you with expert legal advice on all aspects of the divorce process.

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