Trusted Divorce Lawyers
in Northern and Western Sydney
If you are separating from your former partner, chances are you will require assistance with one of the following matters – parenting issues, division of the property pool or getting divorced. While the first two matters can be quite complex and time consuming, an application for divorce is usually quite a straightforward matter. If you require any assistance with a parenting or property matter, please see our Family Law Overview page for more information.
Grounds to Establish Divorce
In Australia, the Federal Circuit and Family Court of Australia grants the so-called “no fault” divorce, meaning that the Court is not interested in the conduct of the parties that led to the separation. As far as the Court is concerned, the reason why the marriage has irretrievably broken down is absolutely irrelevant and, therefore, even the party directly responsible for the marriage breakdown is able to commence proceedings for divorce without any issues.
Furthermore, there is no need to obtain the consent of the other party and you will usually successfully proceed with your Divorce Application if you are able to satisfy each of the following requirements:
You must regard Australia as your home and intend to live in Australia indefinitely, or be an Australian citizen by birth, descent or by grant of Australian citizenship, or ordinarily live in Australia and have done so for 12 months immediately before filing for divorce – see Section 39 (3) of the Family Law Act 1975.
You must be separated from your partner for at least 12 months prior to the filing of your application. You can be separated and still live in the same household, this is often referred to by the Courts as “living under the one roof”. See Section 48(2) and 48(3) of the Family Law Act 1975.
Generally speaking, if you are able to satisfy the above requirements your divorce will be granted, however, some difficulties can arise in the following scenarios:
your former partner may be overseas or in an unknown location;
you do not have a copy of your marriage certificate;
you have been married within the last 2 years;
there is a dispute between you and your former partner about the date of separation – i.e. your former partner claims that separation occurred within the last 12 months.
At Surge Legal we regularly deal with all kinds of Divorce Applications including more complex matters where at least one of the above scenarios applies.
We also assist our clients, if necessary, to have the marriage certificate translated into English by a NAATI certified interpreter and provide an Affidavit of Translation to the Court. If you have travelled from overseas and do not have a marriage certificate in your possession, we are able to file an Affidavit explaining your circumstances and the reasons why your Application should still be granted, despite the non-filing of your marriage certificate.
If you find yourself in the position that you want a divorce, but can’t find your spouse, our expert Divorce Lawyers will follow all legal protocols to ensure you can file for your divorce even if you can’t locate your spouse.
Regardless of your circumstances, provided you can meet the first two eligibility requirements described above, we encourage you to contact our office on 02 8722 5021 to obtain free initial legal advice on your matter.
Lastly, it is important to remember that obtaining a Decree Nisi (an order which comes into effect at a later date - i.e. on the 31st day from the date the Decree Nisi is made your Divorce will become final) does not resolve any issues relating to the children or property matters you may have with your former partner.
You should also be mindful that for any family law property issues, a limitation period commences from the date your divorce order comes into effect and lasts for 12 months. If you allow this limitation period to lapse, you will need to request special permission of the Court, which is not easily granted, to seek a division of the matrimonial property pool. If you are concerned about how your divorce will affect your family law property matter, you should contact our office for initial free legal advice.