Divorce is the legal termination of a marriage.   An application for divorce can be made by one of the parties to a marriage or by both parties, jointly.

The divorce lawyers in Robertson Hayles Lawyers have many years of experience in divorce law and recognise the emotional sensitivity accompanying an application for divorce.

Divorce can be granted before or after property settlement or children matters are resolved.

Criteria for Divorce – 12 months Separation

For a divorce to be granted, the Family Court must be satisfied that the parties have been separated for at least 12 months immediately before the application for divorce is made.

The reasons for the breakdown of the marriage are not taken into consideration by the Family Court when considering a divorce application. Divorce in Australia is founded on a no fault basis. All that is required is proof that parties have been separated for at least 12 months.

The family lawyers in Robertson Hayles Lawyers are able to handle all aspects of your divorce application including the preparation of court papers, service of the divorce application on your spouse and court representation at the divorce hearing.

Separation under the One Roof

Often parties have been residing in separate premises for at least 12 months before an application for divorce is made and have not resumed cohabitation during this period.

On the other hand, out of convenience or to save rental costs, some couples continue to reside in the same household during the period of separation. This is known as “separation under the one roof”. In certain circumstances, a divorce can be granted where parties are separated, though they have remained living under the one roof. For parties residing under the one roof, the Family Court will require additional evidence such as living, financial and other arrangements to prove that parties were separated. You may also have to file an affidavit by an independent person such as a relative, friend or neighbour to confirm that parties were separated though living under the one roof.

Reconciliation Attempts

Parties may also have resumed cohabitation for a short time in an attempt to reconcile during the period of separation.

If parties separate and resume cohabitation in an attempt to reconcile and later separate again, the period of time that parties were previously separated may not apply when determining the 12 month period of separation required for the divorce application. Resuming cohabitation is more than simply residing under the one roof.   It means that parties are living substantially as husband and wife resuming the same marital relationship as they were prior to separation. If parties resume cohabitation and separate again within 3 months, you may use the period of time you were previously separated to satisfy the 12 month separation period. However, if you resume cohabitation for 3 months or more, the period of separation prior to the resumption of cohabitation cannot be taken into account and parties must separate for a further period of 12 months in order to satisfy the separation period for a divorce application.

If there are children of the relationship or other children affected by the divorce under 18 years old, the Family Court will need to be satisfied that suitable parenting arrangements for the children’s accommodation, education and support have been made before granting the divorce.

Prior to or after a divorce, Robertson Hayles Lawyers can assist in terms of any property division or settlement that you wish to enter into with your spouse.

When the divorce is granted, the parties have 12 months to apply for property division. If you fail to do so, an application must be made to the Family Court for permission to commence property division proceedings. The Family Court may reject this application unless hardship is established. Our family law solicitors are able to provide advice on this time limit and on any application to the Family Court for permission to file for property division outside the time limit.

If you wish to apply for a divorce or have been served with a divorce application and require advice or court representation, please contact Robertson Hayles Lawyers on (08) 6311 7815 or by email at reception@robertsonhayles.com to arrange for an appointment with an experienced family lawyer.