divorce

The court must be satisfied that the relationship has broken down irretrievably. A period of separation of 12 months immediately before filing the application satisfies the court of this fact. A couple may be separated and still live together provided they satisfy the court that they are not living as husband and wife. That is to say, their relationship has been  reduced to sharing accommodation. If a couple reconcile during the period of separation, the separation does not have to recommence provided any reconciliation or reconciliations do not total more than a total of three months and those three months do not count as part of the period of 12 months of separation. The Court is normally satisfied that separation has taken place by the applicant swearing as to the separation on the application for divorce.

The court will not grant a divorce unless it is satisfied that appropriate arrangements for any children are in place. That does not mean those arrangements are formal, nor does it mean that there is no dispute, but rather that at the time of the divorce hearing, the children are being appropriately cared and provided for. We have provided further information and advice on  child custody here.

An application for divorce is required to be completed, signed by the applicant before a divorce lawyer or justice of the peace and filed with the correct filing fee paid. Some applicants may qualify for a waiver of the filing fee.

After the application form has been filed, a hearing date will usually be set approximately eight weeks from filing. On filing of the divorce application, a sealed copy is returned by the court. That copy must be personally given to the other party in the divorce, by someone who is over the age of 16 years other than the applicant, at least 28 days before the divorce hearing. That person must then sign an affidavit to the effect that the application was given to the defendant, when and what was said. The reason for this is so that the court can be satisfied that the respondent is aware of the application and the hearing date.

After being satisfied of the above matters, the court will generally grant a decree nisi which is stage 1 of a divorce. Stage 2 is the decree becoming absolute. A decree will generally become absolute 1 month and 1 day after the decree nisi was granted.

At Armstrong Legal Canberra we have specialist divorce lawyers to assist people through the difficulties associated with the breakdown of relationships and issues in relation to marriage breakdown and divorce.