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What a court considers in divorce applications?

In Australia, we have a principle called ‘no-fault divorce’. This means that when a couple applies for divorce, the Court will not consider why the marriage ended, or who is at fault.

The only thing the court will consider, is whether the marriage has broken down irretrievably. That means there is no reasonable likelihood the parties will get back together.

Before applying for divorce, you must satisfy the court that either you or your spouse:

1. Regard Australia as your home, and intend to live here indefinitely;

2. Are Australian citizens; or

3. Ordinarily live in Australia and have done so for 12 months before filing for divorce.

Once one of these is satisfied, the court has ‘jurisdiction’ to hear your application. Then, you must prove that the relationship has broken down – by showing evidence of you and your spouse having lived separately and apart for at least 12 months and one day before filing the application. You would need to show things like different residential addresses for you and your spouse, and a stop in ongoing communication with each other.

It is important to note that regardless of whether the above criteria are met, a court will only grant a divorce if proper arrangements have been made for any children of the marriage. It is common for the parents to have their children for a week each, and evidence of this arrangement will need to be shown to the court.

What if your financial situation has meant you and your spouse have had to continue living together? It is also possible to live ‘separately and apart’ under the one roof, but you need to provide extra evidence to the court. Typically, you would need to write an affidavit, explaining, for example:

1. Changes in sleeping arrangements;

2. Reduction in family outings or shared activities; and/or

3. Division of finances.

The affidavit should also explain the reason why you continued to live in the same home and living arrangements that were made for children of the marriage during this time.

As for practicalities of the application:

  • There is a filing fee of $930, which may be subject to change;
  • You must file your Certificate of Marriage with your application; and
  • Your divorce will be effected one month and one day after the Order was made.

If you think your situation may not be straightforward, and you need help navigating the Family Court and divorce system, please do not hesitate to contact our office to discuss your next steps.

Contact Richardson Murray today.


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