Separation and Divorce
Separation refers to the ending of a marriage or a de facto relationship. Divorce refers to legally ending a marriage.
To be eligible to apply for Divorce, you or your spouse must be able to answer yes to one of the following:
- You were born in Australia or have become an Australian citizen by descent; or
- You are an Australian citizen by grant of Australian citizenship; or
- You are lawfully present in Australia and intend to continue living in Australia.
A party applying for a divorce must have first been separated for 12 months prior to making that Application. This demonstrates that a marriage has irretrievably broken down, which is the only grounds for a Divorce in Australia.
You can establish that you are separated while still living with your spouse. This is known as ‘separation under one roof’. Establishing this does require you to file supporting affidavits, outlining on what basis you say that you were separated during the period in question. You should seek advice about what is required in these circumstances.
If you wish to apply for divorce within 2 years of the date of your marriage, the Court requires you to attend counselling with your former spouse before considering that Application. You need to obtain a Counselling Certificate in those circumstances, and file it with your Application for Divorce. If you do not do so, you need to provide your reasons in the form of an Affidavit, and seek the Court’s permission to apply for a Divorce.
You and your spouse can apply for a Divorce together (joint application) or separately (sole application).
Divorce is separate to any arrangements about the property/finances or children of your relationship, and these can be dealt with during the period of separation. However, once your Divorce is finalised, you have 12 months from the date of the Order to file an application for property or spouse maintenance orders. That timeframe can only be waived by the Court in certain circumstances.
PWB Lawyers can assist with drafting Divorce Applications and any required supporting documents, filing the Application, arranging service, and appearing in Court on your behalf.