Filing for divorce is a separate issue to a property settlement and/or parenting arrangements.
This is because a divorce is dealt with independently. A divorce merely refers to the dissolution of a marriage.
Filing for divorce does not decide any financial or parenting issues and these will need to be dealt with separately.
Once the divorce is finalised, it will start a limitation period for property settlement/spousal maintenance.
You will have 12 months to file an Application in the Court after the Divorce Order takes effect.
If your ex is not agreeing to the ‘divorce’, they can only oppose the Order on two grounds:
1. That you have not been separated for the required period of 12 months; or
2. That the Court does not have jurisdiction to grant the divorce.
The first is relatively self-explanatory, in that you and your ex must be separated for a period of 12 months before you can file for Divorce.
It is important to note that you can be separated and living under the same roof during this period.
Further, you can recommence your relationship for up to 3 months before having to restart that 12-month period, but you must be separated for a total period of 12 months.
The second relates to lack of jurisdiction. To avoid this occurring, you or your ex must either be an Australian Citizen, live in Australia and consider it your permanent home, or normally live in Australia and have lived here for at least 12 months before filing the Application for Divorce.
If none of these apply to you, or your ex, then the Court will not have jurisdiction to grant your Divorce.
Other ways that your ex could get in the way of you obtaining a divorce Order are:
1. If you have been married for less than two years, you and your ex can only obtain a divorce if you agree to counselling or if there are special circumstances.
2. If there is a reasonable likelihood that you will resume your relationship and your ex can satisfy the Court of that.
Rebecca Simpson is a senior associate at Catton & Tondelstrand Lawyers and specialises in all aspects of family law, including both property and complex parenting matters, domestic violence, and child protection matters.
Read more at ctlawyers.com.au/blog.
