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To formally end your marriage you must apply for a divorce.
This is only one step in the process of ending a marriage. The process begins with the decision to separate. Immediate decisions must then be made on important factors such as who will look after the children and the division of assets. It is advisable to seek legal advice when making these decisions.
The decision to separate is a difficult one. You must come to terms with the changes that must take place and plan for a different future. Once you and your partner decide to separate, you may seek counselling and mediation before filing an application for divorce. There are many non-government organisations that offer these services. You can also use a court or government mediation service once you have filed an application for divorce with the Family Court or Federal Magistrates Court.
Divorce is Australia is governed by the Family Law Act 1975 (Cth), which does not take into account the causes of the marriage breakdown. This is called a no-fault divorce. You need only show that the marriage has broken down irretrievably. Either you or your lawyer can prepare the divorce application. If you complete it yourself you must sign it in the presence of a Justice of the Peace or your lawyer. Once it has been filled in, you must file this application with the registry of the Federal Magistrates Court.
An application for divorce can be made if you are married and have been separated for 12 months. It is possible to show that you have been separated for one year while still living together but it is more difficult. If you have been married for less than two years you must show the court that you have considered reconciliation. You can do this by including a certificate signed by a counselling or mediation service in your application for divorce showing that you have attended counselling or mediation.
You may apply for a divorce on your own or jointly with your spouse. If you apply for a divorce and your spouse agrees, and does not dispute the terms of the divorce, they need not do anything additional to finalise the divorce. If a spouse disagrees with the divorce being granted, they may file a response to the application for divorce with the court. However, if you and your spouse have been separated for 12 months there are very few ways to halt a divorce. You should seek legal advice on this issue.
If you request to have your application heard by the court in your absence there is no need to attend the court. This is only if you have no children and your spouse agrees. You will need to attend court if you have children and are applying for divorce on your own. If you do not attend, the court may adjourn or dismiss your application.
If your divorce is granted, a decree nisi (an order “unless”) will be entered, which will become a decree absolute after one month and one day. This means that your divorce is final.
Once the divorce is final there are a number of other matters that will need to be worked out separately. These include the division of marital assets, maintenance and custody of the children. If any of these issues are disputed, a separate application must be made to the court. This must be done within 12 months of your divorce becoming final.
The process of divorce is generally a very painful one. However, in order to end your marriage formally you must go through the process of divorce. In summary, this involves filing an application with the Federal Magistrates Court, which will be heard with or without you, depending on your circumstances. Once a decree absolute has been issued your divorce is final.
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