Divorce proceedings are difference from property settlement proceedings, or arranging the ongoing and future arrangements for your children following a separation.
Divorce relates only to dissolving your marriage. You are unable to remarry until your divorce is finalised but there are timelines that apply and other important things you need to be aware of before an Application can be made.
Requirements to obtain a Divorce
In Australia we have a ‘no fault’ system in place in relation to obtaining a Divorce. You don’t need to prove that someone did the wrong thing, or that it was one person’s fault that the marriage failed.
What you do need to be able to show however is that you have been separated for a period of in excess of twelve months.
Sometimes people separate, but for various reasons, perhaps practical considerations relating to the care of children, or for financial reasons, they continue to live in the same house.
Sometimes people resume their relationship for a period during their twelve month separation. These are not necessarily an impediment to the Court granting a Divorce.
Applying for a Divorce
Various documents need to be lodged with the Court including an Application. A filing fee is also generally applicable.
In some instances, an affidavit must be filed, although this is not always the case.
A copy of your Application must be served on your former spouse. There are rules around how and when service can take place and the Court must be satisfied that the other person is aware of the Application.
If you do not know the whereabouts of your former partner, or there is some suggestion they may be avoiding being served with the Court papers, there are ways of resolving this issue and still obtaining your Divorce.
The Divorce Hearing
Ordinarily, if there are children of your relationship who are under the age of eighteen years, either yourself or your Solicitor must attend at the hearing of your Divorce Application.
Once the Court is satisfied that all the criteria have been met, a decree nisi dissolution of marriage is granted by the Court. The decree nisi does not become absolute for a period of one month and one day after the hearing has taken place. This means that you cannot remarry during this intervening period. A Certificate of Divorce then issues from the Court.