Three Common Issues with a Divorce Application and How to Handle Them

Three Common Issues with a Divorce Application and How to Handle Them

Making the decision to divorce isn't usually something that happens overnight. It's a long, emotional, drawn-out process. A process that – hopefully – you've gone through together, with lots of long conversations, before making the decision.

However, there are times when the process is one-sided and one party is left reeling with the shock of hearing the words "I want a divorce".

Regardless of how you got to this point, when you've finally made the decision, it's not as simple as signing a piece of paper and it all going away. In fact, there can be some common issues along the way. Thankfully, when you know what they are most likely to be, you can start planning how to navigate them.

The two most common issues with divorce are:

1. Proving 12 months' of separation
With any divorce in Australia, you need to have been separated for 12 months before any court will grant it. This means that you've stopped living together in a domestic or marital situation. Although your partner doesn't have to agree to the separation, they need to be made aware that the relationship has come to an end.

But modern life isn't always as simple or cut and dry. There are bills to pay and there may be children to consider, meaning that in some cases, ex-partners can continue to live together. So how do you prove separation when you've still living together but have grown apart?

If this is the case for you, you may want to enrol a lawyer at this point in the process. You'll have to submit two affidavits – written statements which you must swear to be true – with your divorce application which provides the court with evidence that a separation occurred whilst you were still under one roof. This evidence can be things like sleeping in separate beds, separating finances, no longer participating in shared activities etc. If you have chosen to continue living together, it should address why that is, what arrangements you've put in place for your children (if they're under 18), and any government agencies that have been notified. You will then need an additional affidavit from your spouse, relative, or friend, confirming the situation.

2. Serving the divorce application on your spouse
In order for the application to be approved and the hearing to go ahead, your spouse must be served a stamped copy of your application at least 28 days before the court date. If your spouse is overseas, the time extends to 42 days. They in turn must sign an Acknowledgement of Service (Divorce) and return it to you.

If you're unsure if they will sign it and send it back, or you don't actually know how to get in touch with them, there are provisions in place. Your legal representative will be able to advise you on how to get a process server to serve the application on your behalf.

If your spouse still can't be found, you can apply for something called dispensing of service. This is where you can prove you've tried to contact them by all means possible. Once you have, you can submit this document with your application or at a later date.

With any legal process, it's important to seek the advice of legal professionals.

Article provided by Australian Family Lawyers

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