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Plain English Guide to Divorce

Publish Date: 22 January 2007

Author: Colemand and Greig

Separation is a stressful time for individuals and families. At Coleman & Greig our family lawyers can help you through the process by providing the benefits of many years of practical experience in all aspects of family law.

What are the grounds for divorce?

Under the Family Law Act there is only one ground for divorce, that being that the marriage has broken down beyond repair. This is established by separation of no less than 12 months. For the purpose of calculating the period of separation, you can add together periods before and after a reconciliation, provided that the reconciliation lasted for no more than three months.

Are you considered separated even though you are both living under the same roof?

The answer is yes. In this case you will have to satisfy the Court that you were truly separated although still living at the same residence, and the Court may require evidence from some other person to confirm what you say about the circumstances of the separation.

Does it make any difference who applies for the divorce and how do you go about making an application for divorce?

To formally end your marriage you need to apply for a divorce. You can apply for a divorce on your own or you can make a joint application with your spouse. When you apply for a divorce you need to show that:-

• you were married (a photocopy of your Marriage Certificate is required); 
• you separated at least 12 months ago; and
• there is no likelihood of you and your spouse reconciling.

The Court can consider your application for divorce if either you or your spouse:-

• is ordinarily resident in Australia; or
• is an Australian citizen; or
• regards Australia as their permanent home.

What if there are children under the age of 18 involved?

If you and your spouse have a child or children under the age of 18 years, or if there is a child or children under the age of 18 who were ordinarily members of your household, then your application for divorce must include information about the arrangements for the care, welfare and development of these children. The Court must either declare that it is satisfied that proper arrangements have been made for the children, or alternatively that there are reasons why the divorce should be granted even though the Court is not satisfied that proper arrangements have been made. In some cases the Court will delay a divorce until problems relating to the care of the children are rectified.

Please refer to our "Plain English Guide to Children's Issues" for further information.

What happens after the divorce application is lodged?

Once your application for divorce is prepared and signed, it is filed with the Court and the Court gives a date for the hearing of the application. This is generally within two months of the date of filing. Unless the application is a joint application, a copy of the application must be served on your spouse no less than 28 clear days before the hearing date. If there are children involved then the applicant for the divorce must attend at the hearing.

The Court grants the divorce by making an order granting a 'decree nisi' for the dissolution of the marriage. This means the divorce has been granted but is not yet final. The divorce becomes final one month later when the decree becomes absolute. The Court then issues a certificate that the decree nisi has become absolute.

Under what circumstances could the divorce not become final?

A decree nisi does not become absolute if either of the parties to the marriage dies before the decree would otherwise become absolute. If the parties reconcile during this period they can ask the Court to rescind, or set aside, the decree nisi so that the divorce does not occur. You cannot remarry until your divorce becomes absolute.

Do you need to make a new Will once you are divorced?

Once you are divorced, any gift to your former spouse in a Will made before the divorce is no longer effective. If you are divorced you should consider whether you need a new Will.

Does Coleman & Greig have specialist expertise in the area of family law?

We have a number of lawyers, including accredited specialists, practising exclusively in the area of family law. As well as our practical experience in all aspects of family law, other specialist lawyers in the firm are able to contribute their expertise in areas such as commercial, taxation and property law where such issues need to be considered in dealing with your case.

We aim to provide the service that is right for you, whether that be simply advising you as to your rights and obligations, assisting you in negotiating a resolution of issues in dispute or representing you in contested proceedings in the Family Court.

Where appropriate we will work with your other advisers, such as your accountant, so as to achieve a good understanding of all aspects of your case.

How much will it cost to retain the services of Coleman & Greig?

Prior to commencing to act for you we can give you an estimate of our fees. We will provide you with a detailed costs agreement setting out clearly the basis on which we will charge you for work done on your behalf. If you are involved in court proceedings we will give you an upto- date estimate of fees at each stage of the proceedings. We will bill you regularly so that you are fully informed as to our fees and charges.

Coleman and Greig Family Lawyers Parramatta