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Caldwell Martin Cox Solicitors : Family Law : Divorce
Divorce - are you eligible?
To obtain a divorce, the applicant must establish that the Court has the necessary jurisdiction, that is, a party is either:
- an Australian Citizen
- born in Australia
- resident in Australia
- or intends to remain in Australia
- that the parties were married - established by filing a copy of the Marriage Certificate
- that the marriage has irretrievably broken down - under the Family Law Act 1975 , this is established if there has been a separation for at least twelve months.
If parties were still living under the same roof for part of the twelve month separation period, the applicant must file affidavit evidence setting out circumstances of the separation and living arrangements within the household. An affidavit is a written statement on oath. It is preferable that this be provided by a third party such as a child of the parties aged 18 years or over, or a family friend or relative who visited the home on a regular basis during the relevant period.
The Court must be satisfied that there was a real separation and that one or both parties intended that the marriage was over.
Parties must have been married for at least two years before the divorce application is filed. If this is not the case, a party can either:
- delay making their application for divorce until two years after the date of marriage;
- participate in counselling with the other party, to the satisfaction of the Court, which will then proceed to determine the application for divorce.
If there are children under the age of 18 years, the Court must be satisfied that there are proper arrangements in place for the care, welfare and development of those children.
Specific information relating to these arrangements must be inserted in the application for divorce.
In circumstances where the applicant is acting against the best interests of the children, for example, by refusing to permit the other party to have contact with them, the Court may refuse to grant the divorce. The Court may also refuse the application in circumstances where the applicant is able to pay child support, but refuses to do so.
For further information and assistance please call or email a member of our Family Law Team.
Visit our Reading Room for more information on Family Law issues.
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Law 9000
Lic.Law 20008
SAI Global
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The information you obtain at this site is not, nor is it intended to be, legal advice.
You should consult a lawyer for individual advice regarding your own situation.
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