Misconceptions About What Divorce Actually Means


Separation means divorce:

Separation means that you and/or your spouse considers the marriage to be over and that this has been communicated to one another. It is a matter of fact, not a matter of law. You must be separated for 12 months before you can apply to the Court for a divorce.

My spouse and I need to agree to obtain a divorce, or my spouse or I need to be found ‘at fault’ for bringing about the end of our marriage:

You can unilaterally apply to the Court for a divorce. Alternatively, you and your spouse can make a joint Application to the Court. When one party makes the Application, they are required to serve the other with a copy of the Application and provide evidence to the Court that service has been effected. Where a joint Application is made, service is not required.

In Australia, an Application for Divorce does not require either party to be at fault for the breakdown of a marriage (sometimes referred to as ‘no fault divorce’). The Court does not ask why a marriage has broken down.

Divorce means the end of my property dispute with my spouse:

Divorce itself does not alter your legal or equitable interests in property, nor does it prevent your former spouse form making an Application for a property settlement. However, once a divorce becomes final, the limitation period for you or your former spouse to apply to the Court for a property settlement kicks in – if you intend to seek a property settlement, you must make an Application within 12 months of this time.

I cannot apply for a divorce until I finalise my property dispute:

You can apply to the Court for a property settlement prior to divorce, and within 12 months of the divorce being final. After this time, you are required to seek leave from the Court to apply for a property settlement out of time.

I wasn’t married in Australia so I cannot obtain a divorce in Australia:

Australia has jurisdiction to make an Order for Divorce provided that your overseas marriage is recognised in Australia and that you and/or your spouse are an Australian citizenship by descent or a Grant of Citizenship or have lived in Australia for at least 12 months prior to making the Application and intend to continue living in Australia.

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?

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