Divorce Lawyers: directory of firms

Separation has to have run for a continuous period of at least 12 months before the application is filed. The Act allows for one reconciliation: if you resumed living together on one occasion and separated again within three months, the periods either side can be added together, but the time you spent back together does not count towards the 12 months. A reconciliation that lasts longer than three months resets the clock.

Only one of you needs to have decided the marriage is over, and the Act says parties can be held to have separated even where the end of cohabitation was brought about by the action of one of them alone. Your spouse does need to know you consider the marriage finished.

There is also a connection requirement. Victoria Legal Aid describes it as living in Australia and regarding Australia as your permanent home, or ordinarily living in Australia and having done so for at least 12 months before the application. Australian citizenship or being born here also grounds it.

Keeping them separate is the single most useful thing to understand. You can settle property without ever divorcing. You can divorce while parenting arrangements are still being argued. Nothing about a divorce order changes who owns the house.

The order that matters here is timing. Under section 44 of the Family Law Act, once a divorce order has taken effect, property and spouse maintenance proceedings generally cannot be started after 12 months from that date without the leave of the court or the consent of both parties. Filing for divorce before you have sorted property therefore starts a clock that catches people out.

Living in the same house during the 12 months does not prevent a divorce. The Act expressly says parties can be held to have separated and lived separately and apart even where they continued to reside in the same residence or one rendered some household services to the other. The court simply wants more evidence, which usually means affidavits from you and from someone outside the household.

Victoria Legal Aid describes the sort of things looked at: whether there was any sexual relationship, whether meals and domestic duties were shared differently than before, whether money and bank accounts were separated, and whether family and friends understood you to be separated.

The other common refusals are procedural: the marriage certificate not filed or not translated, service not properly proved, or the 12 months miscounted because a reconciliation ran past three months.

There is a court filing fee set by the Federal Circuit and Family Court, and a reduced fee is available to people in certain categories under the court's published guidelines. That fee exists whether or not you use a lawyer.

Legal costs beyond that depend entirely on complexity. A joint application with a current marriage certificate and no service problem is close to a form-filling exercise. A sole application where the other party has left the country, disputes the date of separation, or will not accept documents can take real work, and your lawyer must give you a written costs disclosure with a genuine estimate before that work starts.

A divorce order does not take effect on the day it is made. Under section 55 of the Family Law Act it takes effect one month from the making of the order, or from the making of an order under section 55A about the arrangements for children, whichever is later. Victoria Legal Aid describes this the same way: the divorce is not final until one month after the hearing, when the court issues the divorce certificate.

That certificate is the document you need if you want to remarry, and remarrying before the order has taken effect is not possible. It is also worth updating your will after a divorce, because a divorce affects gifts and appointments in a will differently in different states.