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Things To Keep In Mind About Divorce
The principle of no fault divorce applies in Australia.
In order to succeed in a divorce application you must satisfy the Court that the marriage has broken down irretrievably and there is no reasonable likelihood that you will get back together.
Divorce is a separate legal process from dealing with the division of financial assets, child care arrangements, spousal maintenance etc. HFM Legal can help you with all of this
Can I apply for divorce?
You can apply for a divorce in Australia if either you or your spouse:
- regard Australia as your home and intend to live in Australia indefinitely, or
- are an Australian citizen by birth, descent or by grant of Australian citizenship, or
- ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
You need to satisfy the Court that you and your spouse have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life. It is possible to live together in the same home and still be separated.
You also need to satisfy the court that appropriate arrangements have been made in relation to any children of the marriage under the age of 18 years.
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The friendly and professional lawyers at HFM Legal can assist you with the preparation and filing of an Application for Divorce and represent you in Court if necessary.
You can make a joint or sole application for divorce.
As at 1 July 2019 the Family Court of Western Australia filing fee for a divorce application is $910 (reduced to $305 in some limited circumstances). Current fees can be obtained from the Court’s website.
You can file a divorce application without the assistance of a lawyer. Applications are now filed online using the Family Court’s Commonwealth Courts ePortal system. However, an application for divorce will not resolve property or children’s matters and it is always advisable to obtain the advice of a lawyer experienced in the area of family law prior to applying for a divorce.
If parties can agree as to the division of their property upon separation then they can formalise the agreement by way of consent orders filed in the Family Court of Western Australia or by way of a binding financial agreement. There are pros and cons of both methods. If parties cannot agree as to the division of their property upon separation one or both parties will apply to the Family Court of Western Australia for orders dividing the property for them. The Court will consider the existing property of the relationship, the various contributions parties made to the property of the relationship, the respective needs of the parties and the justice and equity of each particular case.
If the child does not have a passport you can make a Child Alert Request to the Australian Passport Office to prevent a person from fraudulently obtaining a passport for your child. This will only last 12 months and you must ensure that your contact details with DFAT are kept up to date while the child stop alert is in place.
If your child already has a passport you can apply urgently to the Family Court of Western Australia for your child to be placed on the family law watch list. This is an airport watch list system operated by the Australian Federal Police (AFP) and is designed to prevent children being removed from Australia without the consent of the other parent or court. If there is a real risk of your child being removed from Australia without your consent you must obtain legal advice from a lawyer experienced in the area of family law as a priority.
To apply for a divorce in Australia you and your spouse must have been separated for 12 months and fit one of the following: be an Australian citizen; live in Australia and regard Australia as your permanent home; or, ordinarily live in Australia and have done so for at least 12 months before the divorce application.
You should not move interstate after separation without the prior written consent of the other parent or prior order of the Family Court of Western Australia. If you move without a court order or without the consent of the other parent, the Family Court of Western Australia may require you to return with the child/ren until the case has reached an outcome.
In Australia, children are entitled, in the absence of family violence or child abuse, to the benefit of both of their parents having a meaningful involvement in their lives, to know and be cared for by both of their parents, to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development.
It is possible for you and your spouse to be separated but to continue living in the same home during the 12 months before applying for divorce. This is known as ‘separation under the one roof’. If this applies to your situation you may need to file additional evidence proving that the marriage has broken down irretrievably.
If you have been married for less than 2 years, in addition to your application for divorce, you and your spouse will need to attend counselling to confirm that you have considered reconciliation.
If counselling does not result in reconciliation you will receive a certificate which will need to be attached to your application for divorce before it is filed at the Court.