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Thursday 28th of April 2022
By: Olivia Melville, Associate, Coote Family Lawyers

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What do I need to consider before getting divorced?

A divorce is the official recognition of the end of a marriage, but the granting of a divorce does not dictate the terms of the property settlement or parenting arrangements in Australia. In fact, a divorce is not a prerequisite to formalise parenting arrangements or a property division in the Family Court.

When it comes to divorce and separation, there are often a number of common misconceptions. The most common is that the reason for a breakdown of a relationship will have an impact on the property division and/or parenting arrangements. The actions of one party in contributing to or causing a breakdown of a marriage generally will not be considered by the Court, although factors such as family violence may be relevant in certain circumstances.

When the Family Law Act became law in Australia in 1975, a ‘no fault’ divorce was introduced. The only grounds for seeking a divorce in Australia is the irretrievable breakdown of a marriage.

On 6 April 2022, the United Kingdom joined Australia through adopting a ‘no fault’ divorce law. The major reform will increase the accessibility to divorce in the United Kingdom through removing the limited ways to establish an irretrievable breakdown of a marriage. Previously, there were limited grounds to establish an irretrievable breakdown of a marriage including having been separated for 2 years with consent, separated for 5 years, adultery, behaviour and desertion. The new Divorce, Dissolution and Separation Act 2020 is designed to improve accessibility to divorce in the United Kingdom.

In Australia, you can apply for a divorce if either you or your spouse are an Australian citizen, live in Australia and regard Australia as your permanent home or ordinarily live in Australia and have done so for the past 12 months. You will need to satisfy the Court that you or your spouse have lived separately for at least 12 months, and there is no reasonable likelihood of resuming your relationship.

Whilst the divorce will not have an impact on a property settlement, an application for a property division must be made within 12 months of the divorce becoming final, without seeking leave, or permission, of the Court.

If you would like any further information or have any concerns about your situation, please contact our team of top Melbourne family lawyers on 03 9804 0035.

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