Does it matter who is to blame for the end of the relationship or where we were married? Is an application for Divorce Orders a separate issue to parenting matters, property settlement and maintenance issues?
You may apply for Divorce in Australia even if you were married in another country. However you must first satisfy the Court that you have a valid lawful marriage. This will normally be proven by a Marriage Certificate with a sworn translation into English if necessary. However if no Marriage Certificate is available and you are not able to source a copy, the Court may require alternative evidence of the lawful validity of the marriage prior to granting a divorce.
The Court only has the power to grant a divorce if either party:
- Is an Australian Citizen;
- Has lived his or her whole life in Australia;
- Intends to live in Australia indefinitely;
- Regards Australia as their home;
- Ordinarily lives in Australia and has lived in Australia for the 12 months prior to making the application for Divorce.
The Court must be satisfied that the relationship has broken down irretrievable. It must also be satisfied that the parties have been separated for a period of 12 months prior to the application being filed. A couple may be separated but still live together under the same roof provided that they satisfy the Court, usually by way of Affidavit, that they have not been living together as husband and wife. Periods of reconciliation of no longer than three months will not affect the calculation of 12 months separation. However if you have reconciled for a period longer than 3 months this may affect the length of separation. The Court will not consider who is to blame for the end of the relationship.
Satisfactory arrangements for the children
Although you do not need a formal arrangement in regard to the children, at the time of hearing the divorce, the Court must be satisfied that the children are being appropriately cared and provided for. This does not mean that there may not be current Court proceedings in regard to parenting issues at the time of hearing the divorce.
A formal agreement may be reached in regard to property settlement and maintenance issues at any time prior to a Divorce Order being granted. However, once a Divorce Order is granted a formal agreement or an application to court for property settlement and/or maintenance orders must be made within 12 months of the date of the Divorce Order.