Divorce is a separate legal action to Family Law property settlements. Only parties that have been married can be divorced. It is not necessary for parties to be divorced unless you have plans to remarry in the future however many people see it as the last step in their Family Law matter.
To make a Divorce Order the Court must be satisfied that:
- There has been in irretrievable break down of the marriage;
- The parties have been separated for more than 12 months from the date of the Application for Divorce being made; and
- There is no reasonable likelihood of cohabitation being resumed.
Where parties have lived separated under the same roof, the Applicant is required to file with the Court an Affidavit explaining what changed in the relationship since separation.
Applications for Divorce are made either jointly or solely by one party. If a sole application is made there are requirements that a copy of the sealed Application for Divorce be personally served on the other party. It is the usual course that a professional process server is appointed and once service has occurred an Acknowledgement of Service and Affidavit of Service are filed with the Court unless the other party is legally represented. Personal service cannot be affected by one party on another party directly.
We are able to file Applications for Divorce online on the Court’s online portal. Once the Application is filed with the Court a date is allocated by the Court for the Divorce Hearing.
If there are children under the age of 18 years, the person who has applied for the divorce needs to attend the Divorce Hearing. The Court will seek to be satisfied that there are appropriate arrangements in place for any children under 18 years old before making the Divorce Order. If there are no children under the age of 18 years there is usually no requirement for personal attendance by the Applicant and if we are acting on your behalf we will attend the Divorce Hearing for you except in limited circumstances.
Once a Divorce Order is made it does not become effective until one month after the Order is made. Following the Divorce being finalised there is only a period of 12 months until when an Application can be made to the Court for a property settlement. Whilst this time can be extended in some limited circumstances, it will be dependent upon the Judge exercising their discretion to allow the property settlement application “out of time”.
If you would like to meet with our Family Law Solicitors simply call our office to arrange a FREE one hour consultation.