Applying for a divorce can be one of the most emotional and stressful times in your life, especially if there are children involved. Berryman Partners is here to help.
Berryman Partners can assist you throughout the entire Divorce process. Our Newcastle divorce lawyers will provide you with friendly, personalised advice that helps you understand every step involved, allowing you to start thinking about your future.
There are some circumstances where you will not be required to attend Court including, if there are no children under the age of 18 years old or if you and your former spouse jointly apply for the Divorce.
You are eligible to apply for a Divorce Order if:
- Your marriage has broken down irretrievably
- You have lived apart for a continuous period of 12 months
- There is no reasonable likelihood that you will re-enter the relationship again
You can be considered separated whilst still living together, however you must provide specific evidence to the Court of separation.
Whilst the divorce application brings your marriage to a legal end, it does not affect your marital property. Once divorce is approved and finalised you have 12 months to apply for a property settlement or parenting orders. You may also be entitled to spousal maintenance. Berryman Partners can also assist in these matters.
Applications for divorce are filed through the Federal Magistrates Court. This application can be made individually or jointly. If you make the application individually, you do not need the consent of your spouse.
In Australia, we have a “no fault” divorce system, meaning that you do not need to prove any wrongdoing on the part of your former spouse.
If you have been married for less than two years, you will be required to undertake counselling to show that you have considered reconciliation before your divorce application will be approved.
Once the application is filed it will be sealed by the Court and you will be given a court date. If the application was filed by you alone, you must arrange for a sealed copy of the application to be served on your spouse no later than 28 days prior to the hearing date.
When there are children of the marriage who are under the age of 18, the Court must be satisfied that proper arrangements have been made for the children.
The best arrangement for children of divorce is one where:
- The children continue to have a loving and meaningful relationship with both parents, grandparents and extended family members
- Both parents continue to share responsibility for the children
- The children live in a safe environment
You can read more about children of divorce on our Parenting and Children’s Issues page.
You must be separated from your ex-spouse for at least 12 months before you can apply for a divorce. You do not need to wait this long to make arrangements for your children and your assets. You can start working on these straight away.
You can either do this together with your ex-spouse or on your own. If you do the application on your own, you must arrange for your ex-spouse to be served. Applications are lodged with the Federal Circuit and Family Court of Australia. You can lodge the application yourself or we can help you with this.
You do not have to attend Court and the Court will make the divorce Order in your absence unless you and your partner have children together under the age of 18 as the Court needs to be satisfied that proper arrangements are in place for the care and welfare of the children.
Your divorce application will ask for your spouse’s address and you will need to take all reasonable steps to locate them as they need to be served with the application. Service is the process whereby the documents are delivered to your spouse. If you are still unable to locate them, you will also need to file an additional application asking the Court to waive the need for service. This is normally granted in circumstances where all reasonable steps to find or notify your spouse of the application have been taken.
As long as you have been separated from your spouse for 12 months then you can apply for a divorce. This applies even if you have been living in the same household as your spouse for all or part of the 12 months. You will hear this referred to as being ‘separated under one roof’. You and a separate witness will need to provide the Court with evidence, by way of an Affidavit, about how there has been a change in the marriage demonstrating that you have separated.
Yes. As long as you meet the requirements of being either an Australian Citizen or are living in Australia permanently or have been living here for at least 12 months before you make your application for Divorce. You will need a copy of your marriage certificate to include with your application for divorce. If that certificate is not in English it will have to be translated for the Court.
You will need the agreement of the other parent or an Order of the Court if you want to legally change your children’s surnames.
No, divorce is a separate process to children’s and property matters. If you are unable to resolve these things with your spouse outside of Court, you will need to start a separate application.
No. You can choose to remain legally married, even though you have separated from your spouse. Of course, your former spouse might make the application for divorce instead. If you want to remarry, you will need to be divorced. It is possible to enter into a de facto relationship if you are separated from your former spouse but not yet divorced.