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Divorce, when is the right time?

Sometimes, no matter how hard people try, something that is broke just cant be fixed.  This rule also applies for marriages and relationships.  And sometimes, being able to move on is best for everyone involved, the children, the parties and their families and friends.

But when is the best time to make the decision?

It is not up to the parties alone to arbitrarily say, “that’s it!” The law requires a process to ensure the undoing of a marriage is given appropriate consideration and thought.

There are two (2) ways to end a marriage, by application for a divorce order or by decree of nullity of marriage.

By Application???

In order for an application for a divorce to be successful, a number of grounds must be established including:

  1. that the marriage has broken down irretrievably;
  2. the parties have lived separately and apart for a continuous period of 12 months;
  3. there is no reasonable likelihood they will live together again; and
  4. where the separation is not continuous because there is a period of reconciliation, the periods before and after the reconciliation can be used to calculate the 12 months.

Importantly, if the above grounds can be shown, the parties may either jointly or on their own make an application to the courts for divorce.

However, they must wait until at least 12 months from the date they separated to file the relevant application in the courts.

But what if you only just got married, and it’s just not working???

Sadly, if a marriage does not work out in the early days, the courts will require more steps to be taken.  For example, a court will normally only hear an application for a divorce if it is brought at least 2 years after the date of the marriage.

If an application is made within the 2 years from the date of marriage, normally the parties must show that they have attempted marriage counselling or further steps of reconciliation or that some other special circumstances apply to have an application for divorce granted.

Don’t get lost on the way…

Finally, if you are thinking a applying for a divorce and you have all the information you need to succeed, just remember, the Family Law Court IS NOT the correct place to file your documents.  The appropriate registry is the Federal Circuit Court.

Our General Advice Waiver…

Remember, the above information applies to most divorce applicants, however some circumstances for parties may fall outside these common grounds.  As such, actual legal advice should be obtained for any divorce application.

For example, where parties separate – but still live under the same roof for financial reasons, there are further rules that apply to these parties and applications for divorce may still succeed.

So if you are interested in receiving any advice for matters relating to Divorce, Separation, Family Law Disputes, Child Custody Issues, Property Settlements, Consent Orders, Financial Agreements etc, please contact us on 3281 2677, shoot us an email at mail@fmlaw.com.au or head to our website at www.fmlaw.com.au for more information.

Ask for our Family Law Accredited Specialist, David Love – 3281 2677.

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