Counselling and family therapy can be very useful in assisting people to discuss their separation and to work out care arrangements for their children and how best to finalise financial matters in a respectful and safe environment. We encourage our clients to engage in counselling and family therapy, where appropriate, and often very early on in the separation process. Counselling and family therapy can assist you to find a way to work cooperatively and respectfully with your former partner for the benefit of you, your partner and your children.
If an application has been made in the Family Court in relation to children, counselling may be directed by the Court. This counselling may involve the children depending on the age of the children and the issues in dispute.
There are government funded and private counselling services available within the community. We can assist you to find an appropriate counsellor or service which suits your individual needs.
Either party to a marriage can apply for a divorce after they have been separated for 12 months. The parties must have lived separately and apart during that time although they can have lived in the same house.
An Application for Divorce is separate from property settlement applications and parenting proceedings.
Australia is a “no fault” jurisdiction. As long as there has been an “irretrievable breakdown of the marriage”, you can make an application for Divorce. You do not need to give the Court any reason for why you have decided to separate.
You can file an Application for Divorce on your own or you can make the application jointly with your spouse.
You must have been separated for at least 12 months before you can file an Application for Divorce.
You file the Application for Divorce online in the Federal Circuit Court of Australia.
An Application for Divorce Kit is available on the Federal Circuit Court website here.
Separation under one roof: Can I still apply for a divorce even if we have been living in the same home?
You can make an Application for Divorce even if you lived in the same house during the 12 months of separation.
However, you will need to prove to the Court that you were in fact living separately in the same house during this time. This is done by filing an affidavit from both you and your spouse or from you and another person who can give evidence that you lived separately while living in the same home.
At the time of filing your Application for Divorce a date will be allocated for the hearing of your application.
If you have filed the application on your own, you must then arrange for the application to be personally served on your spouse. You cannot give the application to your spouse yourself. You must arrange for someone else to deliver the application to your spouse.
If you have children under 18 years of age, unless it is a joint application, the spouse making the application will need to attend Court for the hearing. If it is a joint application, it is dealt with in the absence of the parties on the date notified at the time the application was filed. You will need to check the Court portal to confirm that the Divorce Order has been made.
The Divorce Order becomes final one month and one day after it is made by the Court.
If there are children under the age of 18, the Court must be satisfied that proper arrangements have been made for the welfare of your children before it grants a Divorce Order. The Application for Divorce must therefore include details as to the housing, education, health, financial support and other arrangements for the children.
Do I need to be divorced to have a property settlement?
You do not need to be divorced to have a property settlement. Property settlement is separate from divorce.
However, once you are divorced (that is once the divorce is final) you must make an application for a property settlement or spousal maintenance within 12 months from the day the divorce became final. There are limited circumstances where the Court will allow an application for property settlement to be made outside this limitation period.