Separation & Filing for Divorce - Do it yourself kits

Applying for a divorce can be a very emotional experience. At times, there can be social stigma attached to the process but you need to ensure that you do what is best for you. This divorce kit has been specially designed in a simple and user-friendly method to assist you through the divorce procedure and to minimise some of the stresses associated with undertaking this legal process.

It is important you understand that the Family Law Act 1975 reformed family law and created a new Australian court structure that now works on a “no fault” system. The only ground for divorce is an IRRETRIEVABLE BREAKDOWN of the marriage. This means that obtaining a divorce is not about who may or may not be at fault. The courts only concern is whether or not there is any possibility that you can work things out with your spouse and give the marriage another try. If this is not possible, there are various steps you need to undertake to prove this to the court.

Divorce proceedings can bring about very strong emotions towards your spouse. It is important to move quickly through the steps for obtaining a divorce without attempting to “seek revenge” on your spouse. Any attempts to use children or property as a weapon towards your spouse will lead to added costs and is likely to act to your detriment in the long run.

A divorce will legally end your marriage. In order to legally end your marriage you need to have been legally married. If, for any reason, you feel your marriage may not be legal, for example, your spouse was already married at the time of your marriage or there was not a real consent for reasons such as fraud or mistaken identity, then your marriage may be void (not legally binding). If this is the case, you need to obtain legal advice about applying for a decree of nullity.

For the majority of people, their marriage is valid and when they want to bring their marriage to an end, they apply for a divorce.

If you are applying to the court for a divorce, you are called the applicant. Your spouse is called the respondent. You may apply for a divorce if at the time you file (or lodge) your application at the court, either you or your spouse are:
  • Domiciled in Australia (that is that you live in Australia and intend to continue living permanently in Australia); or
  • Are ordinarily resident in Australia and have been so resident for one year immediately preceding that date.

    What is meant by separation?

    To establish that your marriage has irretrievably broken down, you must separate from your spouse for a continuous period of at least 12 months following the date on which you swore your application for divorce. The court will not make an order for divorce if the court is satisfied that there is a reasonable likelihood that you may get back together with your spouse.

    Separation will occur as soon as one person moves out of the house (that is, cohabitation ceases). It is possible to be separated under the same roof but it can be difficult to prove to the court that you are in fact separated in the circumstances. If you intend to separate under one roof you must be careful to make it obvious that you have in fact broken up. Look at things such as who cooks, who cleans, which bedroom do you sleep in, do any common financial accounts still exist, do you still go out together socially, do your friends and family know you have broken up etc. You should put yourself in the position of a stranger looking at your life. Would it be obvious to that stranger that you and your spouse are no longer a couple?

    The Family Law Act allows you to reconcile and live together again with your spouse for one period of three months before it becomes necessary to begin the 12 month separation period over again. However, any period of reconciliation that lasts for less than three months must be added onto the overall period of separation.

    This article is brought to you by AussieLegal and Westminster Lawyers

    This Information Outline is provided courtesy of Westminster Lawyers who specialize in this area of law. They are located at Level 9, 552 Lonsdale Street, Melbourne, VIC 3000 or call them on (03) 9670-1734 you would like more information on this legal topic, or you wish to obtain formal advice regarding your situation.

    Westminster Lawyers is a specialist family law firm practicing in Melbourne, Australia. We have eight lawyers including three lawyers accredited by the Law Institute of Victoria as specialists in family law. We are able to assist you in all areas of family law including prenuptial and precohabitation agreements, matters arising after the breakdown of a marriage or a relationship and Wills and estate planning. Our lawyers speak a number of languages including: English, French, Italian, Mandarin, Cantonese, Shangaihese, Hokkien and Japanese. We are part of a world wide network of affiliated law firms with expertise in family law. We act in a number of international family law matters and are able to offer our clients the benefit of seamless service between offices spread across Australia, North America, Europe, Asia and the Pacific.

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