Bowen Buchbinder Vilensky

You Want a Divorce? Things to Keep in Mind

By Anna Westphal, Solicitor at Bowen Buchbinder Vilensky Lawyers

10 February 2015

For many people, the finality of ending a partnership that was intended for life can invoke various conflicting and unexpected emotions. Dealing with these emotions is tough enough without having the added delays and stress caused by not knowing about the divorce process.   Many individuals (and couples) apply for a divorce themselves, while others choose to engage a lawyer. Whichever way you go, what are some of the key points you need to keep in mind?

Some General Requirements

  • You and your spouse need to be separated for at least 12 months before you can apply for a divorce. Make sure you are clear on the actual date of separation, as one party may object to the divorce if the date is ambiguous. You do not need to be divorced to settle financial and child care arrangements.  See the blog by my colleague, Damien Bowen on exactly this point.
  • Before granting a Divorce Order, the Family Court (‘the Court’) needs to be satisfied that your marriage has broken down irretrievably and that there is no reasonable likelihood of you and your spouse resuming married life.
  • If you and your spouse have been living separated under the same roof, you may need to provide the Court with additional supporting information (eg Affidavit from a third party).
  • You can apply for a divorce on your own (sole application), or together with your spouse (joint application).
  • You need to make sure you and/or your spouse satisfy certain citizenship requirements.
  • If you and your spouse have been married for less than two years, you will need to attend counselling or seek permission of the Court before you can apply for a divorce.

Attendance at Court

If you apply for a divorce on your own and have children under the age of 18 years, you will need to attend at the Court for a Divorce Hearing. If you apply for a divorce jointly with your spouse and you have children under 18 years of age, you will not need to attend Court (unless you wish to do so). The Court will usually want to make sure that proper arrangements have been made for the children, specifically in relation to their physical care and financial support. If you are required to appear at a Divorce Hearing, the Registrar may ask you questions in relation to your children. If you apply for a divorce on your own and you do not have children under the age of 18, you will not be required to attend Court.

 Service

If you apply for a divorce on your own, the Court will want to make sure that your spouse has been served with your divorce application correctly. Your spouse must be personally served at least 28 days before the allocated Court date if they are within Australia, and at least 42 days before if they are outside Australia.

If you cannot find your spouse or they avoid service of your divorce application, you may need to apply to the Court to dispense with service or for ‘substituted service’. If granted, the latter will allow you to serve your spouse through other means (eg through family members).

Timing

If the Court grants a Divorce Order, it does not come into effect until one month and one day after the Order is made. It is important to remember that you cannot get re-married until the Divorce Order has come into effect. The Court may shorten this time period in special circumstances.

Other

Once your Divorce Order comes into effect, you have only 12 months to commence proceedings in the Court for Orders in relation to property and spousal maintenance. After this time, you must seek leave from the Court to do so. It would be prudent to speak with a family lawyer in relation to your entitlements.

A Divorce Order invalidates an existing Will unless it is made in contemplation of divorce. It would be wise to speak with a lawyer practising in Wills and Estates once you and your spouse separate. Morgan Solomon is an experienced Wills and Estates lawyer in our firm and will gladly assist you if you wish to speak to someone about this.

The above points are a general guide only and do not cover all factors that must be considered when applying for a divorce. The Family Court of Western Australia provides useful information on their website, including a ‘Divorce Kit’ (see: http://www.familycourt.wa.gov.au/). Applying for a divorce may be fairly straight forward if care is taken, but complexities may arise. If you find the divorce application process difficult or confusing, feel free to speak to any of the family lawyers in our firm.

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