In NSW, divorce is obtained through the Federal Circuit and Family Court of Australia by demonstrating the irretrievable breakdown of the marriage, usually through 12 months of separation. While the process seems straightforward, separating the legal end of divorce from the financial and parenting matters can be complex and time-consuming.
What do I need to prove to get a divorce?
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 for divorce. This doesn’t necessarily mean living in different residences, though that is common. The court needs to be satisfied there’s no reasonable likelihood of resuming cohabitation.
What happens after I file for divorce?
Once you file an application for divorce, the court will review it. If the 12-month separation requirement is met and there’s no reasonable prospect of reconciliation, the court will generally make a divorce order. The court will prepare a memorandum of the divorce order and file it, and a certificate confirming the divorce has taken effect can be obtained from the court registry under section 56.
Can we get divorced if we still live in the same house?
Yes, it’s possible to obtain a divorce even if you are still living under the same roof as your spouse. However, you must be able to demonstrate to the court that, despite living in the same residence, you have lived separate lives for at least 12 months. This requires evidence showing a lack of marital intimacy and a clear intention to separate.
The enforcement gap
Obtaining a divorce order is only the first step. It legally ends the marriage, but it doesn’t resolve financial matters or parenting arrangements. These are dealt with separately, and enforcing orders relating to property settlement or parenting arrangements can be challenging. While the court has powers to enforce its orders, practical difficulties can arise, and further legal action may be required.
Questions to consider
- What assets and liabilities do we both have, and how will these be divided fairly?
- What parenting arrangements will best meet the needs of our children, considering both parents’ involvement?
- How can we minimise conflict and ensure a smooth transition for everyone involved?
This information is general in nature and does not constitute legal
advice. For advice specific to your situation, contact JB Solicitors.