Getting a divorce can be a straightforward affair in many cases. No pun intended. However, sometimes there are circumstances and issues involved that can make things more complicated and involve extra steps. In today’s article, we look at some of the most common issues that come up in divorce cases in Australia. We’ll also cover the best ways to deal with these issues when they arise and what you can do to ensure a successful outcome in your divorce application.
After managing thousands of successful divorce application cases across Australia, our team are experienced with the full range of common (and not so common!) issues that come up and how to handle them. So, if you need help at any stage of your separation or divorce, get in touch with a team member, and we’ll help you work through it.
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Common issues in divorce cases
Here’s a list of seven of the most common divorce issues in Australia.
- Separation under the same roof;
- Separated for less than 12 months and seeking divorce;
- Married less than two years and seeking divorce;
- Location of the other party to a divorce is not known;
- Jurisdictional issues;
- Name discrepancies;
- Marriage certificate issues.
We’ve provided some more detail below about each of these issues. This article certainly doesn’t cover all issues that can arise when seeking a divorce. If your situation isn’t covered below, feel free to get in touch. Our friendly team can provide help to ensure your divorce is successful.
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1. Separation under the same roof
Often, when a marital relationship breaks down and the parties separate, one of the parties will leave the family home immediately and move to alternative accommodation. In other cases, it may not be possible or convenient for either party to leave the family home straight away. In these cases, the two parties may continue living together under the same roof for a period of time, after they have separated.
This type of living arrangement will usually be temporary (for example, 1 – 6 months) and involve sleeping in separate bedrooms and having separate routines while sharing the same home. In some cases, parties continue living together after separation for much longer periods.
In a divorce case, if the parties have been living together under the same roof after separation at any point during the 1-year period before applying for divorce, then extra steps will be involved. In particular, the Court will require additional evidence in the form of Affidavit statements.
Read more about separation under the same roof here.
2. Separated for less than 12 months when seeking a divorce
Before you apply for a divorce, you will need to wait at least 12 months from the date of separation. If you apply before this period, the Court may refuse your application until the minimum required period has passed.
You can find out more about the 1 year waiting period in our earlier blog, “When can I apply for divorce after separating from my partner?”.
3. Married less than two years and seeking a divorce
If the married couple tied the knot less than two years ago, and now want to divorce, they can do so, however, further steps will be required. Particularly, the parties will be required to attend marriage counselling with a qualified relationship counsellor.
If attending marriage counselling is not possible or would not be appropriate for one reason or another, in some circumstances, the Court may excuse you from attending marriage counselling. For this to occur, the Court will require additional evidence to be prepared and filed with the Court.
For further information on this topic, you can read our blog, “Can I apply for a divorce if I’ve been married for less than 2 years?”
4. Location of other party to a divorce is not known
Although some people remain in contact with their ex after separation, in many cases, contact between the parties breaks down and can cease altogether.
If you have lost contact with your ex-partner and do not know where they are located, this will make it difficult for your lawyer to arrange to ‘serve’ a copy of your divorce papers.
‘Serving’ your divorce documents on the other party is an important part of the divorce process. It’s so important that the Court will refuse to grant your divorce unless the issue of service has been dealt with. If you genuinely cannot locate the other party, despite your best efforts, it may still be possible to obtain a divorce.
In this situation, a secondary application process may be required, known as an Application in a Proceeding. If this is accepted by the Court, orders for ‘dispensation’ or ‘substitution’ of service may be issued by the Court.
If this situation applies to your case, you can find out more in our earlier blog, “Can I get divorced in Australia if I can’t find my former partner?”
5. Jurisdictional issues when applying for divorce in Australia
In Australia, the Family Courts will only process a divorce if at least one of the parties has a connection to Australia. This means that at least one of the parties must either be a citizen or have lived in Australia for the past 12 months.
Evidence may be required to prove the connection, especially if both parties were born outside Australia. We can assist in ensuring the jurisdictional requirements are satisfied in your case before filing a divorce application with the Family Court.
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6. Name discrepancies in your divorce application
If the spelling and appearance of a party’s legal name is recorded differently on certain documents, this can lead to issues in your divorce application. The Court may require further evidence, usually by way of formal Affidavit statements, to explain and prove the party’s correct legal name. The Court may decline to make a divorce order if there is any doubt concerning the identity of the parties.
7. Marriage certificate issues
A copy of your Marriage Certificate must be filed with the Court in every divorce case. If you don’t have your certificate, you will need to apply to the Births Deaths & Marriages office in the State or Territory where you were married to obtain a copy.
If you were married outside of Australia, then an original copy in English must be obtained from the relevant authority in the jurisdiction where you were married. If your original marriage certificate is printed in a language other than English, a formal translation and Affidavit of the translator must be obtained and lodged with the Court.
If you were married outside Australia and you cannot obtain a copy of your Marriage Certificate, or there was never a certificate issued, you will need to file additional evidence with the Court to prove your marriage. This proof will be submitted in the form of Affidavit evidence. We can assist with this process if required.
How can a family lawyer help?
Family Law Resolutions have an expert team of family lawyers who can assist with Consent Orders or Binding Financial Agreements. We can help you analyse the pros and cons of both options in order to reach a decision on what is best for your specific and unique needs.
If you would like to discuss your situation in more detail, you can book a free no obligation phone consultation with one of our lawyers. We assist separated couples across Australia with all aspects of separation and family law.
Booking a consultation
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