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The Ten Most Common Questions and Answers from Divorce Lawyers

By Julie Davidson

Republish: EasyPublish™ Published: 28Jun2009 Word count: 1108 Viewed: 668 time(s) Get Free Content For Your Site

Divorce can be ugly and confusing, especially if you don't know the facts about what the Court needs to award you a divorce. You can avoid needless trips to court and endless hassles by reading these ten most commonly asked questions and the answers given by Australia's divorce lawyers.

1) My wife and I don't get along. How do we go about getting a divorce?

Divorce in Australia is a serious undertaking. The Court wants to be sure you've exhausted every avenue to try to repair damage in your marriage before granting permission to dissolve this sacred bond. Therefore, before you can apply for divorce you and your spouse must be separated for 12 months and one day.

2) I caught my husband having an affair, and I want a divorce. Will the Court take this into consideration in our divorce proceedings?

Divorce in Australia is no-fault, meaning the court doesn't look into why the marriage has dissolved unless his actions have somehow taken away from the assets in the marriage.

3) My husband and I tried to work things out. We separated, then reconciled for two months, but it didn't work out. How does this effect the mandatory separation time?

Because the Court is all for trying to work things out they have provided for such a situation in divorce proceedings. Therefore, you can reconcile as man and wife for one period of three months during your separation without restarting the waiting period. The time you spent separated before and after will be taken into consideration as one time period.

4) My wife and I are separated, but because of money problems, still live in the same home. Will the Court agree that we're separated?

Yes, you can live in the same home and be separated, but you need to submit adequate proof to the court that your marriage has dissolved. In this case, the Court will ask for you, your spouse, and a third party to submit an affidavit. The affidavit should address such issues as the reason behind your shared living status (if any), your sleeping arrangements, financial situation, and arrangements made for children, if any.

5) I want a divorce, but my spouse has disappeared and can't be located. Can I still get one?

Yes, you can. Divorce in Australia can be filed by either a single party or both spouses together. As long as you can prove that you've been separated for 12 months and 1 day and that there's no chance of reconciliation you can file for a divorce. However, you'll have to make an effort to contact your estranged spouse and be able to prove to the court in an affidavit that you've done so.

6) We were married outside of Australia, but I'm an Australian citizen. Can I get an Australian divorce, or do I need to go to the country we were married in?

There's no need to travel. If you are an Australian citizen or resident you can file for divorce here. If your marriage certificate isn't in English you'll need to hire a translator to translate it. The translator will need to submit an affidavit of his qualifications, the exact wording of the certificate and an original copy of the certificate.

7) We've been married for less than two years, but we want a divorce. How do we go about getting one?

To gain a divorce hearing after being married for two years or less you must still prove a 12 month and 1 day separation just as couples that have been married for longer. However, because of the short period of time you've been married the Court wants you to be absolutely sure that your marriage can't be saved. You'll need to go to extra lengths to work on repairing your marriage by attending counseling.

Before you can file for divorce, you and your spouse must attend counseling sessions with a family counselor to discuss possible reconciliation and reasons for dissolving the marriage. You then must present a counseling certificate to your lawyer and the court.

If you can't attend counseling for some reason, such if your spouse has relocated and you can't find them, you must file a form with the Court to get special permission to apply for a divorce.

8) Do we have to appear at the court date?

No, not unless you have children under the age of 18 years or have been married for less than two years. However, you might want to appear anyway to make sure that matters are taken care of the way you expected.

9) I want to remarry as soon as the divorce goes through. How long do I have to wait?

The court must be satisfied that there is no chance of saving your original marriage before you can remarry. A lot of people believe they'll get to their court date and be free to remarry. That's not always the case. The Court may ask for more information or proof that you've done your best to save the marriage but it is irreconcilable. In that situation you will need to attend further Court dates until the Court's questions have been satisfied.

If the Court doesn't ask for more information and has been satisfied with the information presented, you will be presented with an order called the 'decree nisi for dissolution of marriage'. This order lasts for one month, so during that time if the party wishes to remain married, the decree nisi is dissolved and the divorce does not take place. After the month period the divorce is final and the parties are free to remarry.

So in a nutshell, before you can remarry you must:

* Be separated for twelve months and one day.

* Satisfy the Court with appropriate information that your marriage is irreconcilable.

* Wait out the 'decree nisi for dissolution of marriage' month period.

10) What if we have children together? Can we still get a divorce?

Yes, the court will grant you a divorce only if you have made the proper arrangements for the children before applying. You must consider where the children will live, what money arrangements have been made, and visitation between the children and both parents.

If you cannot decide these matters then the Court will take action to secure what's best for the interest of your children. The Court takes into consideration the children's wishes, their relationship with you and your spouse, the children's maturity level and needs, and protection of the child against physical and mental abuse if applicable.

In Conclusion.

Everyone would rather have a happy marriage than divorce. However, when relationships go awry it's important to know the facts about divorce so you and your children can avoid friction and tension.

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