Automatic Divorce After Long Separation Australia
In Australia, the concept of an automatic divorce following a long period of separation is a common misconception.
Divorce is not automatically granted following a lengthy separation period, no matter its duration.
Instead, for any couple looking to divorce, a formal application to the Federal Circuit and Family Court of Australia is required.
Understanding the Legal Requirements
Australian law mandates that parties must be separated for at least 12 months for a divorce to be granted.
The separation period serves as evidence to the court that the marriage has irretrievably broken down and that there is little to no chance of reconciliation. It’s important to understand that mere separation for this duration does not automatically result in divorce; a formal application is required.
🔑 Key Takeaway: A 12-month separation is required for divorce, but it’s not automatic; a formal application is essential.
Short Step-by-Step Guide to Applying for Divorce in Australia
- Decide on Application Type: Determine whether you’ll file for divorce individually or jointly with your partner.
- Gather Required Documents: Collect all necessary documentation, including proof of marriage, identification, and evidence of citizenship, residency or domicile in Australia.
- Complete the Application: Fill out the divorce application form which can be found on the Federal Circuit and Family Court of Australia’s website.
- Submit the Application: Lodge your application and supporting documents online through the Commonwealth Court’s Portal and pay the filing fee.
- Serve the Application: If applying individually, serve the divorce application on your spouse, being careful to follow the court’s guidelines for service.
- Attend the Hearing: If there are children under 18 involved, you may need to attend a court hearing.
- Wait for the Divorce Order: After the hearing, if the divorce is granted, the order will become final one month and one day later.
🔑 Key Takeaway: Applying for divorce involves preparation, filing an application with the court, possibly attending a hearing, and awaiting the order rather than an automatic process post-separation.
Separation Under the Same Roof
It’s possible to be considered “separated” while living under the same roof for financial or family reasons.
However, you must provide additional evidence to the court to demonstrate you were separated as a couple during this time.
🔑 Key Takeaway: Living arrangements don’t define separation; the breakdown of the marital relationship counts.
Considerations for Couples with Children
For couples with children under 18, the court must be satisfied that proper arrangements have been made for their care and support before granting a divorce.
This does not mean that everything must be finalised, but a clear plan must be in place.
🔑 Key Takeaway: The court needs evidence of adequate care arrangements for children before granting a divorce.
Finalising Your Divorce
Once a divorce is granted, it becomes final one month and one day after the order is made. Only then is it legal to remarry.
It’s important to note that a divorce order does not settle property or custody issues; these are separate legal matters.
🔑 Key Takeaway: Divorce becomes final one month and one day after the order, and it does not automatically resolve property or custody issues.
Professional Guidance Can Provide Clarity
The belief in an automatic divorce after a long separation in Australia is unfounded. Divorce proceedings necessitate a formal application and strict adherence to designated legal protocols, irrespective of how long you’ve been separated.
This is an important understanding for anyone contemplating divorce following an extended period apart.
Moreover, the complexity of divorce laws underscores the importance of seeking legal advice.
Engaging a legal expert is a prudent step towards safeguarding your interests and facilitating a smoother transition to the next chapter of your life.
🔑 Overall Key Takeaway: Automatic divorce is a myth in Australia; legal proceedings are required to dissolve a marriage officially, regardless of separation length.
Director of Melbourne Family Lawyers, Hayder manages the practice and oversees the running of all of the files in the practice. Hayder has an astute eye for case strategy and running particularly complex matters in the family law system.
