Navigating the end of a marital relationship can be a complex and emotionally taxing process. For couples in New South Wales (NSW), Australia, understanding the legal prerequisites for obtaining a divorce can assist in making the journey more straightforward.
Eligibility Criteria
Before initiating the divorce process, it’s essential to ascertain if you meet the eligibility criteria:
Residency Requirement:
– Either spouse must regard Australia as their home and intend to live indefinitely in Australia.
– Either party should be an Australian citizen by birth, descent, or by granting of Australian citizenship.
– Either party must have been living in Australia for a minimum of 12 months right before filing for divorce.
Marriage Duration and Separation:
– You need to have been married for at least two years before applying for a divorce. However, if you’ve been married for less than two years, you will need to attend counselling and obtain a certificate from a counsellor, or seek permission from the court to apply for a divorce without this certificate.
– You must be separated from your spouse for at least 12 months and one day before applying. It’s worth noting that it’s possible to be considered “separated” even if you are living in the same residence, as long as certain criteria are met.
Submitting the Application
After ensuring you meet the eligibility criteria, the next step is preparing and filing an application for divorce:
Gather Necessary Documents:
A copy of the marriage certificate. If your marriage certificate isn’t in English, you’ll need an English translation of the same, along with an affidavit from the translator.
Complete the Application:
1. Applications can be completed online using the Federal Circuit and Family Court of Australia‘s eFiling application.
2. There are two types of divorce applications: sole and joint. A sole application is when one spouse applies, and a joint application involves both parties applying together.
Filing Fees:
As of the last update in September 2021, a fee is associated with filing for divorce. There are provisions for reduced fees under specific circumstances, like financial hardship.
Service of Documents:
If you’ve filed a sole application, the divorce papers must be served to the other party. This can be done by post or through a third party. Proof of service will need to be provided.
3. Attending the Hearing
If there are children under 18 involved, the party that filed the application must attend the court hearing. If it’s a joint application, neither party is required to attend unless there are children, in which case both should.
At the hearing, if all is in order, the court will provide a divorce order.
4. Finalizing the Divorce
After the hearing, there’s a one-month and one-day waiting period for the divorce to become final. Once this period has elapsed, the court will send a Divorce Order to both parties, signifying the formal end of the marriage.
Conclusion
The process of obtaining a divorce in NSW involves various steps and stringent requirements. It’s always advisable to seek legal counsel when considering divorce to ensure you fully understand your rights and responsibilities. Remember, while the legal process might seem daunting, with the right information and support, you can navigate this chapter of life with clarity and confidence.
