Divorce Proceedings-Common Mistakes and Myths

It is quite common that self-represented parties to a divorce application are misinformed or not aware on what is required to meet the criteria for divorce and what the actual divorce hearing entails.

WHAT DO I NEED TO PROVE IN ORDER TO BE GRANTED DIVORCE?

    In order for divorce proceedings to be successful, the following must be proven:

  • Parties have been living separately and apart for 12 months or longer.

    • This can include circumstances where the parties lived separately and apart under one roof for some or all of this time. You will need to file an affidavit addressing the circumstances around your arrangement if you have remained under the one roof post-separation. The court will look at whether you and your spouse appeared socially together, whether you slept in the same bed, whether there was any hint of there being an ongoing connection between you.

    It is often useful if the separation date is not agreed and the proceedings are contested, to have a further affidavit filed by a friend who has witnessed the reality of your home situation, has had conversations with you or your partner which are indicative of the relationship being over and can speak to whether or not in their eyes it appeared you were separate or together during the period of time you are alleging you lived separately and apart whilst under one roof.

  • That the court has jurisdiction to determine the divorce.

    • The court must be satisfied that you or your former spouse are either Australian Citizens, Permanent Residents or have resided in Australia lawfully for longer than 12 months and consider Australia your home.

  • If there are children under 18, that the arrangements for the children are suitable.

    • Arrangements regarding children and property are often the cause of confusion for many parties upon their attendance at divorce hearing. The Divorce hearing itself is only concerning whether or not the criteria for divorce have been met. It is not an opening to make your argument about contact with children or make allegations about actions of the other party, or access to property settlement. These issues are dealt with separately. In fact, in the event that you have no agreed plan regarding your children but are actively involved in attempting negotiation, mediation or court proceedings relating to your children, it is our experience that the court will often be satisfied that this is sufficient for making the divorce order.

    Likewise, stating your desired orders for children on a divorce application is not useful for the court in determining the divorce.

    It is generally a requirement for the applicant for divorce attend court in the event that there are children under 18 between the parties.

  • The relationship has irretrievably broken down with no prospect of resumption.

    • Filing of affidavits relating to cheating, issues between the parties regarding access to the children that does not meet your expectations etc is also not useful in these proceedings. Australia has in place a no fault divorce system. All that needs to be established is that the relationship has irretrievably broken down. There is no requirement for any evidence as to how this came to occur.

WHAT IF I HAVE ONLY BEEN MARRIED FOR A VERY SHORT PERIOD OF TIME?

For couples wanting divorce that have been married less than two years, attendance at marriage counselling is required prior to attempting the application for divorce. If you have not attended counselling, you will need to seek leave from the court to file the divorce application.

HOW DO I APPLY?

Information on how to apply can be found via the following link: http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/family-law-matters/divorce-and-separation/how-do-i-apply-for-a-divorce/

WHAT IS THE COST OF GETTING A DIVORCE?

The Court’s filing fees for divorce can be found at: http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/forms-and-fees/fees-and-costs/fees-fl/family-law-fees

Filing fees generally change annually. You may eligible for a reduction of the court filing fee if you have a Centrelink Card.

If you require our representation in your divorce, including preparation of the application and any affidavits (if any) required, attending to filing, and attendance at court, our fees are $1000 + GST + filing fee.

Payment arrangements are available in limited circumstances.

If you wish to enquire, please contact: admin@umbrellalegal.com.au or call on 49112300.