Divorce is not a decision to be taken lightly. Just as the decision to get married comes with a lot of emotion and planning, so too does the process of ending a marriage.
In order to seek a divorce in Australia, the law requires that you and your spouse have been separated for 12 months and that one or both of you then make an Application for Divorce to the court.
We have a clear guide on what you need to do for a legal divorce in Australia, but there are also the less visible issues in divorce to consider – things like proving the status of your marriage if it took place overseas, or divorcing a spouse you do not physically know the whereabouts of.
Ending a marriage can be emotionally and financially draining, but it can also be hugely vindicating. Whatever you are going through, or looking to go through, Rose Lawyers are here as your divorce lawyers in Melbourne. We can help you work through your divorce issues, whatever they may be, and can provide legal guidance and counsel to ensure the most positive resolution possible.
Common divorce settlement issues to consider
Divorce is, on paper at least, a relatively straightforward matter, usually managed in the Court in an administrative process. If your marriage is largely typical, it is likely that you will not have many divorce issues. But there are a couple of factors that can arise to complicate matters.
For example, you may have to:
Provide proof of a marriage that took place overseas
Serve Court documents on your former partner
Prove that you have been separated for 12 months
If you are thinking of divorcing your spouse and you have any of the above issues to consider, it is worth seeking legal advice to make sure nothing holds your divorce up.
Marriage Certificate not in English
As part of the Application for Divorce you must provide a copy of your Marriage Certificate.
If this is not in English, you will need to provide a translation of your certificate by someone who is a certified translator.
The translator needs to swear an Affidavit annexing the certificate and the translation.
Rose Lawyers can assist you in locating a translator and also in completing the affidavit.
Separated for 12 months but living under one roof
In order to make an Application for Divorce, you and your spouse must have been separated for at least 12 months on the day that you file the application. Sometimes people separate as spouses, but keep on living in the same home.
Here's how this works:
Separation under one roof occurs when you and your spouse no longer share a berooom and no longer live your lives as spouses. If this is the case for you, you will need to give evidence by an affidavit which supports your claim to separation.
This will also need to include supporting evidence from people who know you, and are aware of you and your spouse's separation.
Note that if your spouse is in prison, it may be a problem to serve documents on them because no acknowledgement of service is possible. In a case like this, supporting evidence from prison staff of receipt of documents will be required for the court to accept service has occurred.
Married for less than 2 years
If you are applying for a Divorce within two years of the date of your marriage, then you will be required to attend counselling for purpose of considering reconciliation. Of course, if there are other factors involved in the divorce such as family violence or if you cannot locate your spouse, you can submit an Affidavit to avoid counselling.
If you do undergo the counselling, this must be conducted by a family counsellor, person or organisation nominated by a qualified mediator.
The person who conducts the counselling must issue the parties with a certificate which is filed with the application.
When do you need a divorce lawyer?
If you are divorcing your spouse jointly and you have no children under 18, the process will be largely straightforward. There may be other situations in which you may have to attend Court, such as:
If you are seeking a divorce and have children under 18
If you are applying for divorce as a sole applicant
In both cases, we recommend discussing your matter with our divorce lawyers in Melbourne. We can provide guidance as to what to expect and what you need to do.
Children under 18
If you are divorcing and there are children under 18 – including adopted, foster or step-children – the Court, in making the Divorce Order, normally must be satisfied that proper custody arrangements have been made for the care, welfare and development of the children.
Where parents make a joint application, and give the Court enough information about the children's care and welfare in their application, this will usually be enough and the parties will not have to attend the hearing.
If there are children under 18, and the application is only made by one party, then the Applicant (person making the Application for Divorce) has to attend the hearing
Rose Lawyers can arrange representation at this hearing. If there are no children, then neither party needs to attend the hearing in normal circumstances.
Documents served on your former spouse
If only one person in a couple is seeking a divorce, then the application for divorce has to be served on the other party.
How this process works:
The other party has to acknowledge receiving the documents by sending back the signed Acknowledgment of Service form.
This is documented in an affidavit.