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Family Law: Divorce

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Often, when people use the word ‘divorce’, they include all the aspects of a couple separating: the separation itself, custody of the children, division of any property and the formal ending of the marriage. Best Divorce Lawyers Melbourne legally, ‘divorce’ refers only to the formal ending of the marriage by the courts.

After you have been separated for a period of at least one year, you can apply for a divorce.We offer fixed-fee divorce applications so you can have the confidence of knowing exactly what your fees will be from the outset. In some circumstances, you won’t even be required to attend Court.

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Divorce

Application for divorce

If you and your spouse have been separated for a period of at least 12 months, you can apply to the Federal Circuit Court of Australia Melbourne Divorce Lawyers. You can either make a sole application or a joint application with your spouse. You may or may not be required to attend Court, depending on your individual circumstances. There are extra requirements if you and your spouse have been married for less than two years, if you have children together who are under 18 years of age, if you cannot locate your spouse or if you have changed your name since you were married. We can help you through each step of the process, including preparing the application and appearing at your divorce hearing if necessary. It is important to remember that the act of getting divorced does not finalise your parenting arrangements or property settlement with your spouse.

Overseas Spouse

You can apply for a divorce in Australia if you either (1) consider Australia as your home and intend to live in Australia indefinitely, (2) are an Australian citizen by birth, descent or by grant of Australian citizenship or (3) ordinarily live in Australia and have done so for 12 months before filing for divorce. This means that you can apply for a divorce in Australia even if you were married overseas or even if you or your spouse are not currently living in Australia.

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Questions And Answers

The filing fee for lodging an Application for Divorce is currently $910. You can also apply for a reduced fee which reduces the cost to $305. To be eligible for the reduced fee, the person applying (or both people if it is a joint application) will usually need to meet the criteria set by the Court.  It is important to note that this is only the fee for lodging the divorce application, and is paid directly to the Court. If you wish to engage a lawyer to prepare your divorce, there will usually be additional fees in addition to this amount.

The time it takes for a divorce to be finalised depends on how complicated your matter is (for example, if you do not have a marriage certificate or cannot find your spouse, it may take longer) and how busy the Court is. Generally, after you lodge an Application for Divorce, the Court will list your matter for a hearing a few months later. You may or may not need to attend this hearing, depending on your circumstances. At the hearing, the Court will decdie whether or not it will grant a divorce. If your divorce is granted, it will take effect 1 month and 1 day after your hearing date. For example, if your hearing is on 12 April 2019, your divorce will take effect on 13 May 2019. If you are wishing to remarry, it is important to give yourself at least several months between lodging your Application for Divorce and the new wedding date.

If you and your partner have been married for more than 2 years, then you can follow the normal procedure outlined above. However, if you and your partner have been married for less than 2 years and wish to get a divorce, you will usually need to attend marriage counselling before the Court will grant the divorce. The marriage counsellor can then provide you with a certificate allowing you to get divorced. There are exceptions to this, including where there is family violence, or where you cannot locate your partner. If your partner refuses to attend counselling, then you can usually still obtain the certificate required for your divorce.

You and your partner must be separated for at least 12 months in order to be eligible for a divorce. Some couples separate and then reconcile and then separate again. As long as you were reconciled for less than three months, you do not need to start the 12 month separation period again. For example, if you separate for five months, reconcile for two months, and then separate again for seven months, you can apply for a divorce as the total separation time is 12 months or more. If you reconcile for longer than three months, you need to start the 12 month separation period again.

Depending on what type of application you make, you may or may not need to attend Court. A joint application is where both spouses apply for the divorce together. A sole application is where one person applies for the divorce and then serves their partner with the Application for Divorce. If you do not have any children under 18, and you have no complications in your Application, you do not need to attend court. If you have children under 18, and you and your ex-partner make a joint application, you do not need to attend court. If you have children under 18 and you make a sole application, you will need to attend court. Sometimes, people will have problems with their divorce which make it more complex. Generally, these people will need to attend court, even if they do not have children under 18. This can include not having a marriage certificate, not being able to find their spouse and other issues with service. We strongly advise you to seek legal advice if your situation is complex.

As marriage equality has been legislated in Australia, same sex couples are able to be married and to be divorced. As of December 2019, same sex couples will be able to divorce pursuant to the usual process, provided they have been married for at least two years and separated for at least 12 months. If you were married overseas or married prior to a gender transition, we recommend seeking legal advice about how this may affect your marriage and divorce.

“Liberty is the right to do what the law permits.”

Montesquieu

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