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  • 07 Family Law
  • Separation and Divorce
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Handbook

Separation and Divorce

What happens when a marriage or relationship breaks down? This chapter explains the process and procedure of separation and divorce as well as specific issues that may arise impacting the proceedings (time limits, marriages of short duration and consideration of children). Details are also provided on how to apply for a court order, when to apply for a divorce, serving divorce papers, opposing divorce, seeking legal representation and court process.

Breakdown of Marriage

The Family Law Act 1975 (Cth) deals with divorce and other disputes arising from the breakdown of marriage or a de facto relationship. This includes property, residence of and contact with children of the marriage or relationship, and spousal maintenance. A man and a woman who have lived together...

Separation

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Applying for Court Orders

Where a couple cannot agree on arrangements after their separation, either of them can apply for orders under the Family Law Act. The basic principles which a court will apply are set out below. Residence of Children The court will take the view that the primary consideration in determining whe...

When to Apply for Divorce

The application for dissolution of marriage (that is, divorce) cannot be filed in a Registry of the Family Court of Australia or the Federal Circuit Court until the 12 month separation period is over. Who can Apply? Either party can apply for divorce. It does not matter who left the marriage, o...

Serving Divorce Papers

Serving the Application The Court will keep the original application, stamp the copies (called ‘sealing’) and give the copies back to the applicant. The following documents must then be posted or sent to (‘served on’) the other party (‘the respondent’): a sealed copy of the Form 4; and ...

Court Process

Appearing in Court The applicant can either appear in person or be represented in court by a solicitor or barrister. It is not necessary for divorcing parties to have a lawyer. In simple divorces the parties can easily represent themselves. Application for Divorce Forms from the Registries of th...

Opposing Divorce

There are only very limited grounds for opposing a divorce. It is not enough that the respondent does not want a divorce, or says that they still love the other party, or wants a reconciliation. As the only ground for divorce is the irretrievable breakdown of marriage, the only way the respondent...

Dissolutions and Annulments

Dissolution of Marriage Once the court is satisfied that the 12 month separation period has passed and that proper arrangements have been made for the children, it will grant a decree nisi. The decree nisi automatically becomes final or absolute one month later and a sealed copy of it is sent to...

Legal Representation and Advice

Choosing a Lawyer Just because a person is a lawyer does not mean that they have the skills, knowledge or experience to deal with a family law case. Not all lawyers do family law or do it well. Before engaging a lawyer it is wise to ask about their experience. The Law Society has a list of lawye...

The Relevant Courts

Changes in the late 1990s to the federal court structure has meant that there are now two courts that have jurisdiction to resolve family disputes: the Family Court of Australia and the Federal Circuit Court. The Federal Circuit Court (FCC) deals with the majority of family law cases that arise, ...

Page last updated 19/03/2018

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