Since the Family Law Act (FLA) came into operation, divorce has been a relatively straight forward process. Sometimes, however, one of the parties might refuse to sign divorce papers.

It is important to know that an application for divorce can be made by one or both parties, and in the case of one party wanting to instigate divorce proceedings, the Family Law Act does not take into consideration if the other person does not want a divorce.

How to prove a marriage has irretrievably broken down?

A marriage has irretrievably broken down as defined in s 48 of the FLA when:

  • the court is satisfied that a couple has lived separately and apart for at least 12 months
  • the marriage has broken down to such an extent, that it is unlikely that the couple would get back together.

It should be noted that the court will not grant a divorce under s 48(3) if there is a likelihood that the parties will resume cohabitation. Furthermore, if a couple makes an attempt at reconciliation after separating, but ultimately the attempt failed within three months, the separation period will resume once again without affecting the 12 month requirement of s 50.

Separate, but still living in the same place

If a couple has separated, but are still under the same roof, witness evidence, as well as proof from the parties will be considered on the facts of whether or not they have stopped behaving in a manner that suggests that they are no longer a married couple, such as no longer:

  • sharing the same bed
  • doing household chores together
  • socialising with one another.

Applying for a divorce

A divorce kit can be obtained from the Family and Federal Magistrates Court, which can be filed once the parties have separated for more than 12 months. Either party is free to file an application of divorce, irrespective of the fact that one of the parties may still be in love with the other.

Divorce requirements for short marriages

In the case of marriages that have dissolved within two years, both parties are required to see a counsellor about reconciliation.

Serving the divorce application

If a divorce application is made by one party, the applicant to the divorce must deliver to the other party notification that the marriage has ended by anyone 18 years of age and over, or a professional process server whom are all allowed to serve the other party with the application. The party who has filed the divorce application is not required to serve the papers personally.
The application must be served to the other person directly, and if the other party refuses to take the document, the individual serving the application can place the document down in their presence while stating that: either the husband or wife is seeking a divorce; these are the papers; and the appropriate court will hear the divorce application on a date to be established.

Once proof of service has been established, the server must fill out a sworn affidavit stating the time, date, and place of service in front of a justice of the peace or solicitor. The other party can also sign an acknowledgement that they have been served as well.

What happens if an application for divorce is opposed?

The opposing party to the divorce proceedings can respond within 28 days of being handed the application for divorce. If the court is satisfied that the marriage has broken down irretrievably and that the parties have been separated for at least for 12 months, opposition for a divorce is very limited. The process may be delayed if there was an error in the date of separation.

The divorce hearing process

If the application for divorce was made by both parties, or no children under the age of 18 are involved, there is no requirement for both parties to attend court proceedings. Otherwise, a quick hearing is usually held, dissolving the marriage.

The process of divorce is just the start of many other issues that may arise after a marriage has come to an end. Division of property and assets, as well as issues to do with children still need to be considered, and if you require assistance, please contact Testart Family Lawyers.

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