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By Bethany Turnbull
When people hear the word “divorce”, they often assume it means sorting out everything that happens when a relationship ends.
However, under Australian family law, divorce has a much narrower meaning.
Divorce in Australia is simply the legal end of a marriage.
It does not determine how the property of the marriage should be divided, or what arrangements should be made for the children going forward. Those matters are dealt with through separate legal processes, although they may occur around the same time as the divorce.
So, in simple terms, once a divorce order becomes final, it means that you are no longer legally married to your former spouse.
Australia has a no-fault divorce system
Australia operates under a no-fault divorce system. This means the Court is not concerned with why the marriage ended or who was responsible for the breakdown of the relationship.
Instead, there is only one ground for divorce: the court must be satisfied that the marriage has broken down irretrievably.
This is established by the parties being separated for at least 12 months and one day, with no reasonable likelihood of reconciliation.
Sole or joint divorce application?
There are two ways to apply for a divorce in Australia: a sole application or a joint application.
A sole application is where one spouse applies for the divorce on their own. That person is responsible for preparing and filing the application, as well as ensuring the other spouse is formally served with the divorce documents. This is often the more common option, particularly where communication has broken down or one party simply does not wish to participate in the process.
A joint application, on the other hand, is where both spouses apply for divorce together. This can make the process more straightforward because there is no requirement to formally serve documents on the other party, and there is often less administrative back-and-forth. Another practical benefit is that the court filing fee is typically shared equally between both parties.
Regardless of whether the application is sole or joint, the legal requirements and outcome remain the same.
Can you be separated while living under the same roof?
Yes.
Many people are surprised to learn that you can be considered separated even if you continue living in the same home.
This is referred to as “separation under one roof” and can occur for a number of reasons, such as financial pressures, parenting arrangements, or simply convenience.
Living under the same roof does not necessarily prevent you from applying for a divorce. However, where separation under one roof is claimed, the Court will require additional information or evidence about the circumstances of the separation.
What happens if you have children?
If there are children of the marriage under the age of 18, the Court must be satisfied that appropriate arrangements have been made for their care, welfare and development before granting the divorce.
Importantly, a child does not need to be biologically related to both spouses to be considered a “child of the marriage”. A child of the marriage can include a child of either spouse, an adopted child, or another child who was treated by both spouses as a child of their family immediately before separation.
The Court is not looking for perfect parenting arrangements. It needs to be satisfied that appropriate arrangements are in place and that the children’s interests are being considered.
Once the court is satisfied of this, the divorce can proceed and ultimately become final.
Divorce is only one part of separating
It is important to remember that getting divorced does not automatically resolve your property settlement or parenting arrangements. These are separate legal matters and may require their own agreements or Court orders.
If you are considering divorce, obtaining legal advice early can help you understand your options, the steps involved, and any other legal matters that may need to be addressed following separation.
Whether you need advice about making a divorce application or your rights following separation, Nikolovski Lawyers can provide advice and guidance throughout the process.
