If your marriage has unfortunately reached its end and there is no potential or desire to reconcile, you may wish to consider finalising the relationship by obtaining a Divorce Order.
This article looks at the legal considerations of how best to inform your spouse of your desire to obtain a Divorce.
It should be noted at the outset that getting divorced is not the same as negotiating and obtaining a property settlement dividing your shared assets, liabilities and superannuation interests. This will require a separate application to be filed. Learn more about Property Settlement.
Legal standpoint – requirements for obtaining a divorce
As a launch point, it should be understood that despite media coverage of celebrity “quickie” divorces – under Australian Family Law (and many other countries) – you are not able to make an application for a Divorce until you have been separated from your partner for at least 12 months.
Provided you have been separated for a period of at least 12 months, there is no prospect of reconciliation, and you meet the ‘jurisdictional requirements^ you are able to make an application for a Divorce on your own (i.e. without the consent of your spouse) or jointly (with the consent of your spouse).
Legal standpoint – how to serve or ‘effect service’ of a divorce application
If you make an application for Divorce as a ‘sole applicant’ you will be required to ‘serve’ your spouse with a copy of the Divorce Application so that they are notified about the pending application for divorce involving them.
Service can be carried out through any of the following means, typically needs the following documents and is required to be served within 28 days if your spouse is within Australia, and within 42 days if your spouse is outside of Australia:-
- Service by Post – potentially as simple as the name implies but a key consideration is whether your partner, depending on the current day to day “working” relationship you have with him/her post-separation, will be willing to sign and return the Acknowledgement of Service Depending on your current relationship this has a high potential to hit a wall if he/she is unwilling to return the documentation or indeed even acknowledge receipt of the documents.
- Service by Hand – that is, arranging for a person who is at least 18 years of age or over to serve the documents on your spouse. The ‘server’ can be a family member, friend of a professional process server. The server will then need to complete an Affidavit of Service by hand and, if signed by your spouse, attaching the signed Acknowledgement of Service.
- Serving Your Spouse’s Lawyer – on the assumption that you know your spouse’s lawyer and they have agreed to accept service on your spouse’s behalf, this is arguably the most commonly used means to serve divorce documents when other family law issues are being negotiated.
Legal standpoint – implications of divorce
If you and your spouse have separated and but are not yet divorced, you do not have to wait until you are divorced to have a property settlement. That is, you are able to have a property settlement at any time up until you are divorced.
Once you and your spouse are divorced, proceedings must be initiated in the Federal Circuit or Family Court of Australia for financial matters within 12 months of your divorce being finalised.
If you do not make an application to court before the limitation date expires, you will forever lose your right to make an application to court without first seeking leave to proceed out of time – an application which may not be successful.
If you have missed your limitation date, you should immediately seek legal advice.
^ you are an Australian citizen, regard Australia as your home and intend to stay in Australia indefinitely or have ordinarily lived in Australia for the 12 months before filing the application.
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