A divorce (“Decree Absolute”) is when parties to a marriage formally end their marriage. This can be carried out as a joint application (where both parties sign and file together), or as a sole application (where one party signs and files independently.
For sole applications, the other party must be served with the filed application so that they have notice of the proceedings and the opportunity to respond.
Period of Separation
In order to apply for a divorce in Australia, the parties must be separated for at least 12 months. We note separation and divorce are not the same.
In the event that parties separate and then reconcile (for a period of 3 months or more), the 12-month period of separation required, prior to obtaining a divorce, must be re-commenced.
For short marriages under 2 years, the parties are required to obtain a mediation certificate to evidence that they have attended counselling to address potential reconciliation.
Separation Under the One Roof
Parties who have remained living under the one roof post-separation, may also apply for a divorce. However, additional affidavits are required in order to prove that the parties were, in fact, separated and to explain why the parties continued to live together. To demonstrate these considerations, the affidavits need to identify the following factors:
- Dynamics and separation of the parties’ financial affairs;
- Dynamics and separation of the home duties;
- Sleeping arrangements, including where the parties physically slept and the conclusion of sexual relations;
- Communication of the separation to each party and to family and friends;
- Dynamics or conclusion of attendance at social events together.
The Family Court of Western Australia also has jurisdiction to grant a divorce order for marriages which occurred in overseas destinations. However, to be considered to have the appropriate jurisdiction, at least one of the parties must be an Australian citizen (by birth, descent or grant of citizenship), or a permanent resident. A party may also apply for a divorce if they regard Australian as their home and have lived here for at least 12 months prior to applying.
For joint divorce applications, neither party is required to attend the hearing. For sole applications where there are no children under 18, the parties are also not required to attend the hearing although we note in some circumstances, attendance is recommended whether required or not. In sole application cases where there are minor children, attendance is required at the hearing to satisfy the Family Court that adequate arrangements are in place for the care of the children.
Our Perth Family Lawyers can assist you by providing legal advice and/or prepare an application in relation to your divorce. Please contact our team at Affinitas Legal on 08 6243 7544 for further information or to book a preliminary appointment.
Author – Stacey Ruthven
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