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Things to Know Before You File for a Divorce in Australia

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Things to Know Before You File for a Divorce in Australia

When you and your spouse feel like you can’t do anything anymore to save your marriage, filing for divorce is the best course of action. It could be a harrowing experience, especially for young children who will definitely be affected, but it could also bring you more emotional stability.

There are a few important things you need to know and do before you file for a divorce. The first course of action is to obtain legal advice. If you live in Western Australia, find a reliable divorce lawyers Perth law firm or one that’s located in your immediate suburb. They can help you understand your rights, your responsibilities, and how the law applies to your specific case.

Here are other things that you should know before filing for a divorce.

You Must Be Separated for 12 Months

This is one of the first requirements, so to speak, of a divorce. Note that if you reconciled with your spouse for three months or more, the 12-month separation restarts on the date that the reconciliation failed. You and your spouse may also be considered separated even if you still live together. However, you need to have evidence to prove your separation. These can include ceasing of any sexual activity, having separate rooms, having separate bank accounts, and being open about the status of your marriage to your families, friends, and/or neighbours.

You Can Get Divorced After Less Than 2 Years of Marriage

It will entail a few extra steps, but it is possible. The first step is to attend a mediation session with your spouse. Afterwards, the court-approved family and child mediator will issue a certificate. If you are unable to attend the session, you must file an affidavit stating the reasons. Once this is accomplished, the standard procedures will already apply, including the 12-month separation. Consult with your divorce lawyer regarding special circumstances in which permission for divorce can be granted within 2 years of marriage or less.

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Parenting and Property Agreements Should be Made Prior to Filing

Child custody and property arrangements are not part of the divorce proceedings. These should be handled outside of the divorce, ideally before you file an application. Taking care of these details before you file for divorce can help make the process smoother. You may also ask for the courts to help you handle asset matters through an application made within 12 months finalisation of the divorce.

Your Spouse May File a Response

If your spouse wants to oppose the divorce, they must file an official response to your application. This response must be served properly on you or your lawyer before the initial hearing date. Your spouse or their legal representative must then attend the hearing. Note that if your spouse files a response, there is a chance that the divorce might not be granted on the first hearing. However, you should also note that there are very few grounds that prevent a divorce from being granted. Consult your lawyer regarding these matters if you think they may affect your case.

You Don’t Have to Have Been Married in Australia

You may file for divorce in Australia as long as you and/or your spouse live in Australia and are Australian citizens or residents. A copy of your marriage certificate, which should be in English, will be required.  If the marriage certificate is translated, you need an affidavit from the translator that states their qualifications, that the translation is accurate, and that the attached copy of the marriage certificate is a an original copy of the translated marriage certificate.

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You May Immediately Use Your Maiden Name

Women are allowed to revert to using their maiden name at any time, even before or while the divorce has yet to be finalised. However, if you want to change the name of your child or children, you will need the consent of both parents.

Remarriage Must Wait

Unlike using one’s maiden name, you may not immediately remarry until the divorce becomes final. Doing so is considered bigamy, an offence that is punishable by up to 5 years of imprisonment. Your divorce will be considered final one month after it is granted. From the time you filed the application, assuming that there are no extenuating circumstances, it will typically take about four months to finalise the decision.

Affairs are another matter entirely because the law doesn’t require blame to be shifted to either spouse. Again, the primary requirement to file for divorce is the 12-month separation to prove that the marriage is irretrievably broken.

For some couples, divorce is the last resort. For others, it can be the only option. No matter what the reasons are behind your decision, a divorce can be a way to unburden you, your spouse, and even your children. Equip yourself with knowledge and don’t be afraid to ask questions from your lawyers.

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