- My ex-partner and I get on well. Can we come and see you together?
Generally speaking it is a conflict of interest to see both parties. It is great if you have an amicable relationship and we work towards maintaining that. We would have a meeting with you alone and discuss how to finalise your agreement.
- What happens if I go to Court?
Sometimes we will recommend to you that you should issue an application in a Court. We will usually make this recommendation if we consider that you will obtain a better result by issuing an application. Sometimes we will make this recommendation because the other side is not being responsive or is being obstructive. We will discuss this with you at the time of the recommendation. Of course, it is always your choice whether you want to issue proceedings or not.
Issuing an application does not necessarily mean that you will have to go to trial. All Courts have compulsory mediation and conciliation procedures that ensure an early resolution if possible. Only a small fraction of cases actually go to trial. The rest are settled “out of court”, by consent (consent orders). Consent orders can be made at any stage during the proceedings.
There are generally time delays from when you issue proceedings to when the proceedings finally come on for trial. This can vary from 6 to 18 months. You will have to attend Court at least once before a trial.
Each Court has different procedures once proceedings are issued. If you are married or not married and separated from your partner after 1 March 2009, or the issue is in relation to children, the proceedings will be in either the Family Court or the Federal Circuit Court. If you are not married and you separated before 1 March 2009 and the issue relates to property, the proceedings will be issued in the Magistrates Court, District Court or Supreme Court depending on the amount that you claim. Applications for protection orders are dealt with by the state Magistrates Courts.
Each of the Courts have websites that you’ll find on our ‘Links” page which provide more information about their processes.
Talk to us if you are unsure about anything.
- How do I apply for divorce?
To obtain a divorce you need to have been separated for 12 months. Once you have been separated for 12 months you can apply for a divorce and, provided there is no likelihood of reconciliation, the divorce order will be made. There are particular rules that govern the calculation of the 12 month separation requirement where parties have reconciled and then separated again. There is no longer any requirement to show “fault” to obtain a divorce.
Applications for divorce are filed in the Federal Circuit Court of Australia. The Application can be filed by one party alone or jointly by the parties. When your Application is filed you are given a hearing date. The application must then be served on the other party.
You will need to attend the Court if you are applying alone and you have children under 18. Otherwise the Court can, if you want, deal with the application in your absence.
At the hearing the Court will assess whether the ground for divorce has been established (irretrievable breakdown of the marriage) and whether the other party has been properly served. The Court will also make sure that there are adequate arrangements in place for the care, welfare and development of any children of the marriage. There are also particular requirements to meet in situations where the parties lived separately and apart under the one roof and where the Application is made less than 2 years after a marriage.
So long as you have made out the ground for divorce, can prove to the Court that your Application was properly served and can show the Court that there are adequate arrangements in place for any children of the marriage, your application can proceed successfully.Your spouse need not attend at the hearing.
- What is a pre nuptial agreement?
Please see ‘Pre-Nuptial and Cohabitation Agreements’ under ‘About Family Law.’