Divorce

When married couples separate, they will often ask:



• ‘When can I get divorced?’
• ‘How do I apply for a divorce?’
• ‘Does my partner have to agree to a divorce?’
• ‘Will I have to go to court if I want to get a divorce?’

In application for a divorce, or a dissolution of marriage, will usually be made to the Federal Circuit Court of Australia.An application for a divorce, or a dissolution of marriage, will usually be made to the Federal Circuit Court of Australia.

Before you can apply for a divorce, you will have to be able to demonstrate to the court that your marriage has broken down irretrievably. To do this it is necessary to show that you have been separated for a period of at least 12 months. This does not mean that you have lived separately for all of that time.

Where parties have separated but have continued to live under one roof, that time can count towards the minimum 12 month period of separation. The court will, however, require evidence that despite living under one roof, there has been a change in the marriage that is consistent with the parties being separated. At Frigo James Legal Group, our divorce lawyers are able to assist you not only with the preparation of your application for a divorce but also with any supporting evidence needed to satisfy the court that the divorce orders should be made.

If you were married for less than two years, the Court would usually require an attempt at reconciliation through counselling, unless there are circumstances that would prevent that counselling from taking place.

Whilst parties to a marriage must have been separated for at least 12 months before they can apply for a divorce, they do not have to wait 12 months before attempting to resolve parenting arrangements or the division of property from their relationship. This can be especially important where one party to the marriage controls the finances or assets from the relationship and the other party is unable to support themselves following separation. Should you be facing this type of financial hardship, our experienced family lawyers may be able to help you apply for urgent spousal maintenance.

A common misconception people have following a marriage breakdown is that both parties have to agree to the divorce order being granted. That is not the case. An application for a divorce can be filed either individually or jointly. Where it is filed individually, it is not necessary for both parties to agree to a divorce order being made.

Whether you will be required to attend the hearing of your application for a divorce will depend on the circumstances of your relationship. Usually, an applicant for a divorce will only need to attend the hearing where there are children from the marriage under the age of 18 years. In those circumstances, the court will need to be satisfied that there will be sufficient provision made for the care, welfare and development of those children before it will grant the application for a divorce.

Where a divorce order is granted, that can result in the whole or part of your Will becoming ineffective. At Frigo James Legal Group, our experienced succession lawyers can help you review and prepare a new Will.

If you need help applying for a divorce or preparing a new Will, contact our experienced lawyers at Frigo James Legal Group on 07 5621 3799 or info@fjlegal.com.au.