The breakdown of a marriage is almost always a stressful and emotionally challenging period in the lives of many. What can make the experience more stressful are the technicalities surrounding the divorce application process.
A divorce application does not need to be a stressful experience in your life. In fact, a divorce application is not very stressful at all.
The purpose of this article is to provide you with a simple guide on the divorce application process and the most common things you need to be aware of when making your divorce application.
Are You Eligible For An Application For Divorce?
Before approving a divorce application, the Court must be satisfied with three things.
1. You and your former partner have lived separately and apart for a minimum of twelve months: To satisfy this requirement, you may have still been occupying the same residence. The main objective behind this requirement is that the parties have behaved with one another in a way that they are no longer in a relationship since separating.
Australian family law recognises that some former couples will need to continue living together for financial reasons or stability. Accordingly, former couples who are separated but continue to occupy the same residence are recognised under section 42(2) of the Family Law Act.
2. There is no reasonable likelihood or the prospect of resuming married life: This is when both parties are confident that they do not want to continue their marriage.
3. The proper arrangements have been made for children under the age of 18 (if any): This requirement necessitates arrangements to have been made for the children concerning matters such as:
- Where they will live;
- The school they will attend;
- What days they will spend with each parent; and
- Who will drop off and pick up the children from school.
Before You Get Started On Your Divorce Application
A divorce application may be either filed jointly with the other party to the marriage (joint application) or by yourself (sole application). The same application is used for both methods.
In Part A, Question 1 of the application, you are required to select whether you are filing your divorce application on your own or jointly.
Before beginning the application for the divorce process, you should understand the different requirements for each application process. Accordingly, you should pick the application process that is most suitable for your particular circumstances. The key differences amongst the types of applications are highlighted below.
Sole Divorce Application
If you file for a sole divorce application, you are legally known as the applicant, and the party you are seeking to divorce is the respondent.
In a sole divorce application, you will only be required to sign the application. Although the respondent does not need to sign, you must still serve the application on the respondent at least 28 days before a Court hearing if they are in Australia or at least 42 days before a Court hearing if they are overseas.
Court attendance for a sole divorce application is only necessary when children under the age of 18 are involved. This is because the Court must first be satisfied that the proper arrangements have been made for the care, welfare and wellbeing of the children to grant a divorce.
Joint Divorce Application
In the case of a joint divorce application, both parties are known as joint applications. One party completes the application process in a joint application and then gives the other party a copy to sign. The main differences for a joint application are that:
- Both applicants must sign the finalised application documents;
- There is no requirement to serve the documents on the other party if the application is made jointly; and
- Court attendance is not required unless you have selected to attend under Question 2(a) on the application.
Importance of Seeking Legal Advice
When discussing the divorce application process and eligibility requirements involved in divorce, it is vital to seek legal advice if you are unsure of any legal requirements or time limits that may apply concerning your divorce.
This is very important because the consequences of a mishandled divorce or parenting matter can have dire consequences which can impact you negatively for life. Please do not hesitate to give our team a call. We are always happy to help.
Here at JB Solicitors, we’ll make the process as pain-free as possible. We have fixed-fee pricing for family law, giving you a clear sense of the costs from the start, and we will be sure to help you out every step of the way.
With years of experience under our belt, we pride ourselves on making each client’s family law experience as positive as possible.
Contact JB Solicitors today to speak with one of our friendly and experienced family lawyers.
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