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Separation & Divorce
The Family Law Act 1975 radically reformed federal laws concerning divorce.
Previously there were 14 grounds for obtaining a divorce. Now the only ground is the irretrievable breakdown of the marriage. This is demonstrated by a twelve month period of continuous separation. The Courts are not concerned with who may be at fault. The only consideration is whether or not there is any possibility that you can work things out with your spouse and continue to work at the marriage.
Appropriate Court
The Federal Magistrates Court was created by the Family Law Act 1975.
All applications for divorce should now be made to the Federal Magistrates Court.
The Federal Magistrates Court has the jurisdiction or power to deal with similar matters to the Family Court of the Australia. It does not, however, have power to deal with the following:
· Adoption;
· Property disputes concerning property worth over $700,000; or
· Applications concerning the nullity or validity of a marriage.
The effect of a divorce application
A divorce will end your marriage. You will need however to have been legally married in the first place. Your marriage may not be legal if your spouse was already married or there was the absence of consent, for example if there was fraud or mistaken identity. In these circumstances, you will need to seek legal advice about applying for a decree of nullity. For the majority of people, their marriage is valid and when they want to bring their marriage to an end, they apply for a divorce.
You may apply for a divorce if, at the time you file (or lodge) your application at the Court, either you or your spouse are:
· are ordinarily resident in Australia and have been so resident for one year immediately preceding that date.
The meaning of separation
In order to demonstrate that your marriage has irretrievably broken down, you will need to demonstrate that you and your spouse have separated for a continuous period of 12 months. The Court must be satisfied that there is no reasonable likelihood of you getting back together.
Separation will generally occur when one party moves out of the shared home
However it is possible to be separated under the same roof. For some couples, financial constraints mean that this is the only option. You will need to need to consider carefully your domestic and sleeping arrangements to make it obvious that you have, in fact, broken up. You will need to consider your financial arrangements, social arrangements and whether in fact your family and friends are aware of your situation. You will need an affidavit (sworn statement) from at least one independent witness who can testify to the arrangements in place.
If you are the sole applicant, you will also need to swear an affidavit or in the event of a joint application, both you and your spouse will need to swear affidavits.
The Family Law Act allows you and your spouse to be reconciled for one period of up to 3 months before it becomes necessary to start the12 month separation period again. However any period of separation which lasts less than 3 months will not count towards the 12 month period.
Key steps in the divorce process
1. Obtain the application form, available from the Federal Magistrates Court website www.fmc.gov.au A copy of this form is included in this Kit.
2. Swear or affirm the completed application.
3. File the application either in person at the Federal Magistrates Court or sending by post to the Family Court who file applications on behalf of the Federal Magistrates Court. You will need to supply two copies of the application along with the fee ($334 as of 1 July 2005) and a copy of your marriage certificate.
4. The Court registry will provide you with a file number, place date and time for the hearing along with a Court information brochure.
5. If you are the sole applicant, you will need to serve a copy of the application on your spouse at least 28 days before the hearing if your spouse resides in Australia or 42 days if abroad.
6. If you are the applicant and you have children under 18 you will need to attend the hearing. Otherwise you may not need to attend but you should check this with the Court.
7. At the Court hearing, if the Court grants the application, it will make an order called a “decree nisi”. This decree will automatically become “absolute” or final after 1 month and 1 day unless the parties lodge an appeal or an application to withdraw on the basis that the parties have reconciled or a spouse has died.
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