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The Family Law Act 1975 (Cth) provides that a Court will be able to grant a divorce if there has been an irretrievable breakdown of marriage. There are significant preconditions and timeframes which apply to the commencement of an application for a divorce.
In order to prove to the Court that the marriage has broken down irretrievably the parties must be separated for a period of 12 months prior to the filing of the application for divorce.
The application for divorce (cannot) be filed until the parties have has been separated for one year. In the event that the application for divorce is filed prior to there being a clear 12 month separation, the application is improperly filed and the divorce will not be granted.
In circumstances where the parties have separated for a period of 12 months or more but have not been married for 2 years, the Act requires that the parties file with their divorce application a certificate from a counsellor which the parties have attended indicating that the parties have participated in counselling. The Court will not grant a divorce in circumstances where the parties have been married for less than 2 years and do not file a Counselling Certificate.
Overarching the above requirements, the Court will not grant a divorce in cases where there are children unless it is satisfied that there are in place proper arrangements for the care, welfare and development of the children. The Court does however have the power to grant a divorce (even though not satisfied with the care arrangements) if it is satisfied that the divorce order should take place. A case where the Court may grant the divorce anyway may be where there are Parenting proceedings before the Court which will likely resolve the Parenting dispute.
Proceedings for Property division can be commenced in the Federal Circuit Court of Australia or the Family Court of Australia. The proceedings can be commenced at any time before the parties are divorced but need to be commenced within at least 12 months of the date of the divorce.
In the event that the proceedings are not commenced within the 12 months following the date of the divorce, the parties will be out of time for the commencement of proceedings and will need to make an application for leave to proceed.
The Court will consider any application to commence proceedings out of time in accordance with the provisions of section 44(4) of the Act which section provides:
(a) That hardship would be caused to a party to the relevant marriage or a child if leave were not granted;
(b) In the case of proceedings in relation to the maintenance of a party to a marriage – that, at the end of the period in which the proceedings could have been instituted without the leave of the Court, the circumstances of the Applicant was such that the Applicant would have been unable to support himself or herself without an income test, pension, allowance or benefit.
In Applications to commence proceeding out of time, the person seeking an Order for leave to proceed must convince the Court that there is either hardship on them at the time the proceedings could have been commenced and/or the Applicant was unable to support him/herself.
De Facto couples are not married and the Family Law Act provides that any application for Property division between de facto couples needs to be commenced within a date no later than two years from the date of separation.
Our experienced Family Law Solicitors at Watson & Watson can assist you in your Divorce proceedings. If you have any queries or concerns with regard to time limitations or seek advice in relation to divorce matters or division of property please do not hesitate to contact Richard Watson Senior Family Law Solicitor or his Personal Assistant to discuss your concerns.
This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.
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