In this series we will discuss the fundamental basics of Family Law, providing information and guidance that may answer questions you have throughout the Family Law process. This week we discuss one of the most commonly asked questions for those in the midst of separation and looking to finalise the process .. How do I apply for a divorce?
Grounds for Divorce
There are certain criteria that the Court needs to assess when deciding whether to grant the divorce which includes the following:
- Demonstrate that the marriage has broken down irreconcilably;
- The Court must also be satisfied that the parties to the marriage have lived separately and apart for a continuous period of at least 12 months immediately preceding the filing of the application for the divorce order.
It is also possible for the Court to make a finding that the parties have separated while they were living under the same roof. For more information regarding the criteria that the Court looks at refer to the article titled ‘What does it mean to be separated living under the same roof.’ A Divorce Order will not be made if the court believes there is a reasonable likelihood of cohabitation being resumed.
Documents Which Must be Filed
Parties must file the following:
- Divorce application;
- Marriage certificate;
- If the certificate is not in English parties must file an affidavit of translation sworn by the translator with an English translation of the marriage certificate, which must set out:
a) That the translator who conducted the translation is an approved translator;
b) State the organisation that provided the translator’s accreditation; and
c) Verify the translation by having the translator state they believe their translation is an accurate translation of the original document.
Jurisdiction to Grant Divorce
Partners who were married overseas and wish to apply for divorce in Australia can apply if they meet the requirements under the Family Law Act 1975 (“the Act”).
Under the Act the Family Court has jurisdiction to grant a divorce application when either party:
- Is an Australian citizen;
- Regards Australia as their home and plans to live in Australia indefinitely as a citizen or resident; or alternatively
- Ordinarily lives in Australia and has done so for the 12 months preceding the application for divorce.
Although it is relatively straightforward to demonstrate whether either party is an Australian citizen or has lived in Australia for the 12 months leading up to the application it can be difficult to demonstrate that a party regards Australia as their home and intends to live in Australia indefinitely. In this situation the Court will need to be presented with evidence demonstrating that a party wishes to remain in Australia. An example of such evidence would be the purchase of property, the enrolment of children in a local school, or applications to become an Australian resident or citizen.
This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.