HOMEDivorce
AHL Legal has specialist family lawyers able to assist people with the simplest to the most complex divorces and related issues when a marriage breaks down. In Australia, a divorce may be obtained in either the Family Court of Australia or the Federal Circuit Court (Federal Magistrates Court), however there are requirements that must be satisfied first.
Marriage requirements
First, you must satisfy the court that you have a valid marriage. A marriage certificate, with a sworn translation into English, if necessary, will suffice. Our lawyers can usually arrange any missing paperwork for you. If you have no marriage certificate available, the court may ask for some alternate evidence of the marriage prior to granting divorce.
Jurisdiction
The court only has power to grant a divorce if either party has one of the following attributes:
1. Regards Australia as home;
2. Intends to live in Australia indefinitely;
3. Has lived his or her whole life in Australia;
4. Is an Australian citizen; or
5. Ordinarily lives in Australia and has lived in Australia for the 12 months prior to the making of the application for divorce.
Breakdown of relationship
The court must be satisfied that the relationship has broken down irretrievably. If the applicant swears that there was a 12-month separation period immediately before filing the application, this will normally satisfy the court. You may be separated and still live together provided that you satisfy the court that you are not living as husband and wife. In other words, your relationship is only limited to sharing accommodation.
If you reconciled during the separation but the relationship broke down again, it is still possible to obtain a divorce if the reconciliation did not last for longer than 3 months. The period of reconciliation will not count towards the required 12 months.
Arrangements for children
The court will not grant a divorce unless it is satisfied that appropriate arrangements for any children are in place. That does not mean those arrangements are formal or without dispute at all, but rather the court needs to be satisfied that at the time of the divorce hearing, the children are being appropriately cared and provided for.
Notice and service
A hearing date will usually be allocated approximately eight weeks from filing the divorce application. Upon filing, a sealed copy will be returned by the court. That copy must be personally given to the respondent (the person you are divorcing) at least 28 days before the divorce hearing. This must be done by someone who is:
1. Over 16 years old
2. Not the applicant
That person must then swear an affidavit which states that the application was given to the defendant, and when and what was said. The reason for this is so that the court can be satisfied the respondent is aware of the application and the hearing date.
AHL Legal has ample experience in complicated divorces, from spouses that have gone overseas to those who have disappeared entirely. Should you have trouble contacting your spouse, our lawyers can assist you in carrying out service with alternate methods, or apply to the court for dispense with service.
