Am I eligible for a divorce?
To be eligible for a divorce you must be married. Married relationships can exist between parties of the same sex or the opposite sex. You must also be able to satisfy the Court that
- the relationship has broken down irretrievably;
- you have been living separately and apart for a continuous period of twelve months (this can be under one roof); and,
- there is no reasonable likelihood of cohabitation being resumed.
In circumstances where you have experienced periods of reconciliation or have been separated under one roof, you may still be eligible to apply for divorce. If you have been married for less than two years, you will also have to attend marriage counselling if it is safe to do so and file a counselling certificate with your Application for Divorce.
You can apply to the Federal Circuit and Family Court of Australia for a divorce after being separated for a continuous period of twelve months. This can include a period of separation under one roof. After the filing of an Application, a Registrar will hear the matter and determine whether a divorce may be granted- with consideration of whether sufficient provision has been made for the care, welfare, and development of any children. You are not required to attend this hearing unless the Application is made solely (not jointly), or there are children under eighteen.
After a divorce has been granted, the time limit on commencing proceedings begins.
When can the Court determine my dispute?
You do not have to wait until you are divorced to commence property proceedings. However, once your divorce is finalised, you will have one year to commence proceedings relating to property or maintenance. Either way, you must ensure that you have complied with the required pre-action procedures.
There is no time limit for setting aside an existing property order, or for varying, reviving, or setting aside an existing maintenance order. Parenting proceedings are not subject to any time limit, as long as the child is under eighteen years of age.
Same Sex Separation/Divorce
Same sex partnerships fall under the same jurisdictions as heterosexual partnerships, extending to entitlements, de facto obligations, and common partnership rights. we actively represent your best interests in the legalities of same sex separation which can include aspects such as settlements, maintenance, visitation (if applicable), and mediation in coarse circumstances.