You apply for a divorce in New South Wales by demonstrating to the court that your marriage has irretrievably broken down, usually evidenced by 12 months of separation. However, the process isn’t always straightforward, particularly if you anticipate the other party may object or engage in delaying tactics.
What do I need to prove?
Under section 48 of the Family Law Act, you must prove to the court that you and your spouse have lived separately and apart for a continuous period of at least 12 months immediately before filing your application. This doesn’t necessarily mean living in different residences, but the court will look at the nature of your relationship during that time to determine if separation has occurred.
Can the other party prevent my divorce?
Generally, if you can demonstrate 12 months of separation, the court will grant a divorce. However, the court won’t make a divorce order if it believes there’s a reasonable likelihood of you and your spouse resuming cohabitation. This is relatively rare, but it’s a factor the court considers.
What about vexatious or harmful applications?
The court has powers to prevent repeated or harmful applications. If you have previously applied for leave to start proceedings, you must disclose all occasions and relevant facts in an affidavit filed with your application, as per section 102QAF. The court can dismiss your application if it considers the proceedings are vexatious, or if the affidavit doesn’t substantially comply with the requirements.
The risk of unnecessary delay
The court can dismiss an application for leave to proceed without a hearing, and even in chambers. This means a seemingly straightforward application can be dismissed quickly if the court isn’t satisfied with the information provided. It’s crucial to ensure your affidavit is comprehensive and accurately reflects the history of any prior applications.
Questions to consider
- What evidence do I have to demonstrate a clear 12-month period of separation?
- Is there any risk my spouse will actively oppose the divorce, and if so, how can I prepare for that?
- Have I previously sought leave to commence proceedings, and if so, have I fully disclosed this in my application?
This information is general in nature and does not constitute legal
advice. For advice specific to your situation, contact JB Solicitors.