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Family Law - Divorce & Separation FAQs

We have included some helpful information on Divorce and Separation in Family Law based on common questions we receive from our clients, including the divorce application, parenting issues and more. For a detailed explanation, or for legal advice about your specific situation, contact our experienced family lawyers on the Gold Coast. You can also check our FAQs on Financial Agreements.

When can I apply for a Divorce?

An application for Divorce is based upon the grounds that the marriage has permanently broken down.

This ground will be established if you and your spouse have lived separately and apart for a continuous period of 12 months prior to applying for a Divorce and there is no reasonable likelihood that you will live together again.

When does separation occur?

Separation occurs where one or both spouses forms the intention to end the marriage and acts on that intention.

 The intention to separate must be communicated to the other party.

What happens if we have separated but continue to live in the same house?

You will need to provide the Court with independent evidence from 2 people (by way of an Affidavit) who can attest to the fact that you and your spouse were living separate lives despite living under the same roof.

What if we have children?

A Divorce Order will not take effect unless the Court declares it is satisfied:

  • that there are no children of the marriage under the age of 18 years; or

  • that proper arrangements have been made for the care, welfare and development of those children to the marriage who are under the age of 18 years.

What happens if I have been married for less than 2 years?

 You cannot file an Application within 2 years of the date of the marriage without the leave of the Court unless a Certificate is filed with the Application stating the parties have considered reconciliation with the assistance of an approved family counsellor.

Do I need the consent of my spouse to get Divorced?

 No.

Either party can apply for a Divorce. You can also make a joint Application.

If I was married overseas, can I apply for a Divorce in Australia?

Yes.

If one party is an Australian citizen, or is domiciled in Australia, or has resided in Australia for 1 year immediately preceding the filing of the Application.

How do I apply for a Divorce?

To apply for a Divorce, an Application needs to be lodged with the Federal Circuit Court. The Court charges a fee to lodge your Application.

Do I have to attend Court?

It depends.

If there are children under the age of 18 years and the Application is a sole Application (i.e. made by one party only), you are required to attend Court at the Hearing of your Application. However, if it is a joint Application you're not required to attend Court. If there are no children under the age of 18 years, you do not need to attend Court.

Can I finalise my Property and Parenting Matters before I am divorced?

Yes.

Talk to our family lawyers for more information about Property Settlements and Alternative Dispute Resolution.

Can I apply for a Property Settlement after I am Divorced?

Yes, however, you must do so within 12 months from the date your Divorce Order takes effect.

If you do not make an Application before the expiration of the 12 months, you would then need the leave of the Court to apply out of time which is rarely given.

When does my Divorce take effect?

A Divorce Order takes effect one month after the making of the Order by the Court. You cannot remarry until the Divorce Order has taken effect.

What happens if we reconcile before the Divorce order takes effect?

If a Divorce Order has been made, the Court may at any time before the Order takes effect, rescind the Divorce Order on the basis that the parties have reconciled (this is done by way of Application to the Court).

What is the effect of my Divorce on my Will?

A Divorce Order revokes a spouse’s entitlement under a Will. Once you have separated it's important that you seek legal advice with respect to changing your Will.

Can I remarry my former spouse?

Yes.


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