Going through a divorce is a complex emotional and financial process. Here at Joss Legal, we understand the impact this can have on the parties involved and aim to assist in making the journey easier.
There are two main criteria when applying for a divorce.
- Both parties must have a connection with Australia either through being Australian citizens, an ordinary resident of Australia or they have been a resident in Australia for one year prior to filing.
- The parties to the marriage must have been separated and lived apart for 12 months before applying for a divorce.
There are some exceptions to the above requirements. Parties can remain under the same roof due to financial strain or caring for the children of the marriage. Parties must also show that they have separated under the same roof through things such as living separate lives, separate living arrangements, separation of financial arrangements and notifying friends and family of their separation. At least one of the parties and an independent third party must give evidence of this.
If you have been married for less than two years, there is an extra requirement parties must fulfil before they can apply for a divorce. Section 44(1B) Family Law Act 1975 (Cth) states that the parties must attend marriage counselling to consider reconciling with each other. After counselling, the parties are required to obtain a counselling certificate to accompany their divorce application. Counsellors can be found on http://www.familyrelationships.gov.au
Parties are required to attend counselling to preserve and protect the institution and sanctity of marriage. The Court provides parties the time for potential reconciliation with each other and any children involved.
However, there are some exceptions to the counselling requirement, namely:
- Inability to locate a party of the marriage or refusal to attend;
- Current protection order; and
- History of domestic violence.
If any exceptions apply, the party making the application for divorce must file an Affidavit stating the reasons and details why counselling has not occurred.
If the parties can wait for two years after their marriage, they do not have to provide a counselling certificate. The two-year period runs from the date the parties married to the date they file their divorce application on the eCourts portal. This includes the 12 month separation period.
Our team at Joss Legal can assist you in preparing your application, guiding you through the process and filing the documents on the eCourts portal. Please get in touch via email on lawyers@josslegal.com.au or on telephone on (08) 6559 7480.