A divorce is legal recognition of the termination of a marriage and a means of ending the legal duties and responsibilities spouses owe to each other. Obtaining a divorce is the initial step in making future arrangements concerning children, property and spousal maintenance. It is possible for parties to live together and still be separated, however, in most cases it is beneficial for both parties to go through the process of a divorce.
Am I eligible to apply for a divorce?
If there is no reasonable likelihood of the parties reconciling and resuming married life and you and your spouse have lived apart continuously for 12 months, you should consider obtaining a divorce. For example, if you wish to remarry, it will be necessary to obtain a divorce from your previous partner first.
You can apply for a divorce in Australia if either you or your spouse:
- Regard Australia as your home and intend to live in Australia indefinitely, or
- Are an Australian citizen by birth, descent or by grant of Australian citizenship, or
- Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
Importantly, the time frame for seeking any property or financial orders in the Family Court is twelve (12) months from the date of the divorce being granted.
Divorce cases where children are involved
If there are any children under the age of eighteen (18), a court can only grant a divorce if it is satisfied that proper arrangements have been made for the children. The court’s paramount consideration is what is in the child’s best interests. When deciding what is in the child’s best interests, the Family Law Act 1975 requires the court to take primary and additional considerations into account.
Primary considerations consist of the benefit to a child of having meaningful relationships with both parents and the need to protect a child from physical and/or psychological harm (from being subjected or exposed to abuse, neglect or family violence).
Additional considerations in relation to a parties’ conduct include, but are not limited to, the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent, each parent’s ability to provide for the child’s needs, the maturity, sex, lifestyle and background of either of the child’s parents and the attitude of each parent to the child and to the responsibilities of parenthood. As a result conduct of each parent during the divorce can play an important role in later proceedings.
However, the granting of a divorce does not determine the issues relating to property and maintenance or parenting arrangements for your children. If you want to make arrangements about these issues you can:
- Make an agreement with your spouse and file it with a court, or
- Seek orders from a court, when you and your spouse cannot reach an agreement.
We know that the divorce process can be strenuous for both parties. If you would like more information on how we can assist you with your property settlement matter or any other family law matters, do not hesitate to contact Etheringtons Family Lawyers in North Sydney on (02) 9963 9800 or via the contact form here.