Can I Contest a Divorce?
A party can contest the other party’s Application for Divorce if one of the following grounds are met:
- Ground 1 – The parties have not been separated for a period of 12 months; or
- Ground 2 – The Court does not have jurisdiction to grant the Divorce.
The Parties Have Not Been Separated For A Period Of 12 Months
The parties must have been separated and living separately and apart for a period of at least 12 months prior to either party filing an Application for Divorce with the Court. It is common that parties are separated whilst living under the one roof immediately following their separation. This period can be taken into account in the 12 month period. A party can still apply for an Application for Divorce in circumstances where they resumed living together with the other party, on one occasion, but separated again within 3 months of resuming living together and remained living separately and apart until the filing of the Application for Divorce. The period of 3 months cannot be included in the 12 month period, however the periods before and after can be.
The Court cannot make a Divorce Order where there is a reasonable likelihood of the parties recommencing cohabitation.
The Court Does Not Have Jurisdiction To Grant The Divorce
The Court will not have jurisdiction to grant a Divorce Order unless at the time of filing the Application for Divorce either party to the marriage is:
- an Australian citizen; or
- domiciled in Australia; or
- ordinarily resident in Australia and has been living in Australia for 1 year prior to filing the Application.
One of these grounds must be met for the court to have the jurisdiction to grant the Divorce Order.
If a party does not want a divorce granted and wants to contest the other party’s Application, they must file a Response to Divorce which sets out the basis on which they seek that the court cannot grant the Divorce Order and attend the Hearing specified on the other party’s Application for Divorce. The Response to Divorce must be filed within 28 days (if the other party lives in Australia) or 42 days (if the other party lives overseas).
If a party wants the Divorce granted but there are errors contained in the Application for Divorce filed by the other party, then they can file a Response to Divorce setting out the facts to which they disagree. For example, to correct the spelling of names or dates of births. The box consenting to the Divorce Order being made must be ticked if the party wants the Divorce Order to be made.
WHERE TO NEXT?
Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?