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Divorce and the law

Divorce and the law: Mildwaters Lawyers Kadina South Australia. Image: kangaroos_fighting by Charlie Marshall via Flickr

The information we have compiled for this page about divorce and the law, will most likely answer many of the questions you have right now. Rest assured, Mildwaters Lawyers is here to work with you as you need us.

Divorce and the law: What is a divorce?

A common misconception is that divorce covers everything that you need to do when separating from your spouse, including sorting out your property.  The fact is that divorce is just a court decree that you are no longer legally married.

What does a divorce achieve?

Once your divorce becomes final, you are legally able to get married again.  The other impact a divorce has is that it starts the clock ticking from a property settlement point of view, as after 12 months has expired from the date your divorce becomes final, you lose the automatic right to apply to the court for property settlement orders.  If you wish to seek the assistance of the court after that time, you need to obtain special permission from the court and you need to have a good reason for the delay.

In what circumstances can I get a divorce?

Before you can obtain a divorce, your marriage must be broken down irretrievably.

When can I get a divorce?

You must be separated for at least 12 months before you can apply for a divorce.

If you have been married for less than 2 years, you will need to attend mediation before you can apply.  Even once you have done that, you will need to obtain special permission from the court to obtain a divorce in these circumstances.

How can I get a divorce?

Step 1

Applying for a divorce is relatively easy.  The application can be made to either the Federal Circuit Court or the Family Court.  We would recommend that you use the Federal Circuit Court as the vehicle for obtaining your divorce as the application fees are substantially less than in the Family Court.

Once the application is filed, two copies of the sealed application are returned to the Applicant (or to the lawyer applying on behalf of the Applicant), with the date of the court hearing listed on the top right hand side of the document.  One copy of the document is for the Applicant to retain and the second copy is for serving on the other party.

Most of the time, a divorce is applied for by one of the parties to the marriage that has broken down.  However, both parties can apply jointly if they wish.  If a divorce is applied for jointly, then Step 2 is not required.

Step 2

If one of the parties to the marriage has applied for a divorce, service of the sealed application for divorce must be effected on the other party.  This can be done by post or in person.  Once service has been completed, the person that has served the documents must complete proof of service documents and file them with the court.  This enables the court to see that both parties are aware of the divorce proceedings and have an opportunity to be heard if they wish.

Step 3

The court hearing is the next step in the process.  If there are no children of the marriage who are under 18 years of age, neither the husband or the wife need to attend the hearing.  The divorce order can be made by the court in the absence of the parties.  However, if there are children of the marriage under the age of 18, the parties are required to attend.

Generally speaking, the court hearing is brief, and if all the documentation is in order, the divorce will be granted on the day of the hearing.

Step 4

One month and one day after a divorce is granted by the court, the divorce becomes final and the court issues a copy of the document that provides proof of the divorce to each of the parties.

Can my spouse refuse to get divorced?

There are very few grounds upon which your former spouse can prevent your divorce being granted.  Even if they don’t agree with some of the facts in your application, such as the date on which you say that you were separated, these facts will eventually be resolved by the Court and the divorce granted.

How long does it take to get a divorce?

It generally takes about 4 months for your divorce to be granted and become final.  However, sometimes it can take longer if there are any hiccups.

It is important to remember that you cannot get remarried before you are divorced, so it is sensible to wait for your divorce before planning another wedding.

Do I need a lawyer to get a divorce?

The answer to this question is short and sweet.  You do not need a lawyer to get a divorce.  Save yourself the cost and apply for the divorce yourself.  The Family Court website is very helpful and provides step by step directions as to what you need to do to successfully apply and obtain a divorce.

Sometimes though you just might not want to deal with it and would prefer someone else to take care of it for you.  If that is the case, then we would be pleased to do all the work for you.  You can find our costs for our services for a standard divorce application in the About section on this website.

Useful Link

If you would like to apply for your own divorce, then you may find the following link helpful.

Family Court website on How do I apply for a divorce?

And, of course, you are always welcome to contact us today for advice and guidance.

 

 

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