Divorce Lawyers Melbourne
Ending a marriage is a significant life event, and the legal process of divorce can seem daunting. At Kelly & McHale Family Lawyers, we aim to simplify this process for you, providing clear guidance and efficient management of your divorce application. While the emotional aspects of separation are often complex, the legal requirements for divorce in Australia are relatively straightforward.
What is a Divorce Order?
A divorce order is the legal dissolution of a marriage. It’s important to understand that a divorce application is separate from arrangements for children or the division of property and finances. While these matters are often handled concurrently, the divorce order itself solely addresses the termination of the marital relationship.
Key Requirements for a Divorce in Australia:
To apply for a divorce, the Court needs to be satisfied of the following:
- Connection to Australia: You or your spouse must meet certain residency requirements or consider Australia your home and intend to live here indefinitely.
- Irretrievable Breakdown of the Marriage: This is proven by a separation period of at least 12 months.
- 12-Month Separation Period: You and your spouse must have been separated for a continuous period of at least 12 months immediately before filing the divorce application. This separation signifies to the Court that the marriage has broken down irretrievably.
- Separation Under One Roof: It’s possible to be separated while still living in the same home. If this applies to you, you will need to provide additional evidence to the Court to demonstrate that you were living separate lives during this period (e.g., sleeping in separate rooms, no longer attending social functions together, separating finances). We can guide you on the type of affidavit evidence required.
- Short Periods of Reconciliation: If you and your spouse have reconciled for a period of less than three months during your separation, this may not restart the 12-month clock. However, the time you were reconciled for will not count towards the 12-month separation period. For example, if you separated for 6 months, reconciled for 2 months, and then separated again for 6 months, you would meet the 12-month requirement. It’s best to discuss any reconciliation periods with us.
- Proof of Marriage: You will need to provide your marriage certificate. If it’s not in English, a certified translation is required.
- Appropriate Arrangements for Children: If you have children under the age of 18, the Court must be satisfied that proper arrangements are in place for their care, welfare, and development before a divorce order can be granted. This doesn’t necessarily mean you need formal court orders for parenting, but the Court needs to know that considerations such as where the children live, financial support, and time spent with each parent have been addressed.
The Application Process: Sole vs. Joint
- Sole Application: One party makes the application. If you make a sole application, you will need to serve the divorce application documents on your spouse. We can assist you in managing this process, ensuring it’s done correctly and in accordance with court rules.
- Joint Application: Both parties make the application together. This is often a more straightforward process as it indicates agreement to the divorce, and generally, neither party needs to attend the court hearing.
How Kelly & McHale Family Lawyers Can Help:
Navigating the divorce application process can be time-consuming and administratively complex.
Our experienced team can:
- Advise you on your eligibility to apply for a divorce.
- Prepare all necessary documentation accurately, including the Application for Divorce and any required affidavits.
- Ensure your marriage certificate meets the Court’s requirements.
- Lodge the application with the Federal Circuit and Family Court of Australia.
- Assist with serving the application on your spouse if you are making a sole application.
- Provide guidance on what constitutes “appropriate arrangements for children” and how to present this information to the Court.
- Represent you at the court hearing if required (often not necessary for joint applications or sole applications where there are no children under 18).
- Keep you informed at every stage, ensuring the process proceeds as smoothly and swiftly as possible.
A divorce order typically becomes final one month and one day after it is granted by the Court. It’s crucial to note that there are time limits for making applications for property settlement and spousal maintenance, which generally run for 12 months from the date your divorce order becomes final.
Frequently Asked Questions (FAQs) about Divorce
Here are some common questions we encounter regarding divorce in Australia. Understanding these can help you prepare for your own situation.
Do I need a lawyer to get a divorce?
Legally, no, you are not required to have a lawyer to apply for a divorce. However, having a lawyer can ensure your application is completed correctly, all necessary documentation is included, and the process is managed efficiently. This can save you time, reduce stress, and avoid potential delays if paperwork is incorrect or incomplete.
To help us advise you: Have you already started preparing any paperwork yourself?
How long does it take to get a divorce?
Once the application is filed, it usually takes approximately 2 to 4 months for the Court to grant a divorce, depending on the Court’s workload and whether your application is straightforward. The divorce order then becomes final one month and one day after it’s granted.
To help us advise you: Are there any urgent reasons why your divorce needs to be finalised quickly?
What if I can’t find my spouse to serve the divorce papers?
If you’ve made all reasonable attempts to locate your spouse and cannot find them, you may be able to apply to the Court for an order for substituted service (serving the documents on a third party likely to bring them to your spouse’s attention, like a relative or employer) or, in rare cases, dispensation of service (meaning you don’t have to serve them at all). We can advise you on the necessary steps.
To help us advise you: What steps have you already taken to try and locate your spouse?
Do we have to agree on property and parenting before we can get a divorce?
No, you do not need to have finalised your property settlement or parenting arrangements to apply for a divorce. However, as mentioned, if you have children under 18, the Court must be satisfied that “appropriate arrangements” are in place for them. These arrangements don’t need to be formalised by court orders at the time of the divorce hearing, but the Court needs to be assured of their well-being. Remember, strict time limits apply for initiating property or spousal maintenance proceedings after your divorce is finalised.
To help us advise you: Do you have any existing parenting plans or agreements, formal or informal? Have you started discussions about property division?
What does “separation under one roof” actually mean?
It means that while you and your spouse continued to live in the same home, your marital relationship ended. You would need to demonstrate to the Court that you were living separate lives. This can be shown by things like: * Sleeping in separate bedrooms. * Ceasing sexual activity. * Separating your finances (e.g., opening separate bank accounts). * Notifying family and friends of your separation. * Reducing shared household activities (e.g., cooking and eating meals separately). * No longer attending social events as a couple. You will typically need to provide an affidavit detailing these changes, and often a supporting affidavit from a friend or family member who can corroborate your situation.
To help us advise you: If you have been separated under one roof, can you provide dates and details of when and how your living arrangements changed?
What if we were married overseas? Can I get a divorce in Australia?
Yes, you can apply for a divorce in Australia if you were married overseas, provided you or your spouse meet the residency requirements and can provide your foreign marriage certificate along with a certified English translation if it’s in another language.
To help us advise you: Do you have your original marriage certificate and, if needed, an official translation?
Do I need to attend the Court hearing for the divorce?
- Joint Application:
Usually, neither party needs to attend. - Sole Application with No Children Under 18:
You generally do not need to attend. - Sole Application with Children Under 18:
You (or your lawyer) will usually need to attend the hearing. We will advise you if your attendance is required and can represent you in Court.
Ready to Take the Next Step?
If you’re considering a divorce or have questions about your specific circumstances, contact Kelly & McHale Family Lawyers today. Our personal approach makes the often difficult area of Family Law as stress-free as possible. Your first consultation is free.