When a marriage breaks down, it does not always immediately lead to divorce. Often, after separation, couples wish to finalise a property settlement and deal with child custody arrangements before they decide to apply for a divorce.
In Australia, you have to be separated from your spouse for at least 12 months, without any prospect of reconciliation, before you can apply for a divorce.
If you have been separated for 12 months, but were living in the same house for some period after separation, you will need to provide additional information to the Court, in a form of an Affidavit, that you have indeed been living separately and apart for the required period of one year, albeit under one roof.
You will also need to provide a similar Affidavit from another person, for example a friend or a relative, who can support your evidence regarding the genuine nature of your separation during the time you and your spouse were living in the same house.
If you satisfy the 12-month separation requirement and believe that there is no chance for a resumption of your relationship, you do not need any other reason to apply to Court for a divorce. The other party cannot prevent you from divorcing them, unless they can prove to the Court that you have not been separated for 12 months. Challenges to divorce applications by the other spouse are rare.
Often couples make a joint application for divorce and share the costs. This simplifies the process as you will not need to serve the documents on the other party and prove to the Court that the service of the documents has been accomplished, as you would be required to do if you applied for the divorce on you own.
You can only remarry, once your divorce is obtained through the Court and the order with respect to your divorce becomes final, which happens one month after it is made by the Court.
The Family Law Act 1975 stipulates that a person is legally allowed to remarry one month and a single day after they receive an order for divorce. Before your new marriage can be formalised, you will need to present a Certificate of Divorce to the celebrant. It is a criminal offence in Australia to remarry while still married to another person.
If you would like to learn more about the legal implications of divorce, or obtain family law advice in general, talk to the experts at Craddock Murray Neumann Lawyers.