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Divorce
Grounds for Divorce
In Australia there is only one ground of Divorce, that being a “irretrievable breakdown” of marriage. This is a no fault ground and it does not matter which person left the relationship or caused the relationship to end.
This ground is satisfied once a married couple have lived apart for at least 12 months (“the separation period”).
What is separation under the one roof?
Separation under one roof is when parties to a marriage separate but continue to live in the same home. It may be for a few days, weeks, months or years following separation.
If the parties lived in the same home during part or all of the required 12 months separation period, before the Court will make a divorce order, one party (in a sole divorce application) or both parties (in a joint divorce application) need to file an affidavit setting out their evidence that they were separated under the same roof. An affidavit form a third party (like a friend or family member) will also usually be required.
The affidavit will need to show there was a change in the marriage, gradually or suddenly, showing the spouses had separated. Examples in the affidavit may include:
A change in the sleeping arrangements.
A reduction in family outings or social engagements.
A reduction in performing household duties for each other; for example, cooking meals or washing clothes.
Division of finances; for example, operating separate bank accounts.
Any other matters that show the marriage has broken down; for example, if family and friends were advised of the separation.
The affidavit should also explain:
Why the parties continued to live in the same home following separation and what will be the living arrangements in the future.
If there are children of the marriage, what the living arrangements were for the children have been since separation.
If any government departments were advised of your separation.
Do I have to attend the Divorce Hearing?
Where the application for divorce is a sole application and there is a child of the marriage under 18 years the applicant spouse must attend the Court hearing.
In all other instances, provided the circumstances of the separation are set out correctly and the required affidavits have been filed with the Court, there is no requirement for the parties to attend the court hearing and the Judicial Registrar will determine the application in chambers.
If the Court requires more information before making the Divorce Order, it will adjourn the case and direct the party or parties to file additional material or to attend the Court hearing.
Process for Divorce where there are children under 18
Where there are children under the age of 18 years, before granting a Divorce Order, the Court must also be satisfied that proper arrangements have been made for the care of the children. At the time of hearing of the application (which will be on the papers in the absence of the parties if a joint application is made), if the Court is satisfied that the Divorce Application meets the requirements of the Family Law Act then the Judicial Registrar will pronounce a Divorce Order in relation to the marriage.
When does the Divorce Order take effect?
Once this hearing takes place, the Divorce will take effect one month and one day after the Divorce Order is made at the hearing. Until the Divorce Order takes effect the parties will still be considered spouses at law despite having been separated and despite having the Divorce Order granted.
Effect of a Divorce Order
Obtaining a Divorce Order:-
Legally severs the marriage. This means that both parties are able to remarry in the future and that the parties will no longer be considered spouses at law.
Will render any provision in your Will that appoints the spouse as executor of the other spouses estate or nominates them as a beneficiary of the estate null and void. Under Queensland law, a spouse is entitled to make a claim on their spouse’s estate any time up until a Divorce Order takes effect.
Will start a time limitation period running in which married couples must finalise property settlement and spousal maintenance matters. A party can only make a claim for property settlement or spousal maintenance if they apply to the Court within 12 months from the date a Divorce Order becomes effective.
