There is technically no limitation period when it comes to filing an Application for Divorce. Some people remain separated for many years whilst remaining legally married. This may suit some people, but there are a few key points to consider;
- Whilst you are still legally married, you cannot re-marry.
- You need to finalise a property settlement to divide your property.
- You may still need to make parenting arrangements if you have children with your ex-spouse.
- If you remain separated and do not take steps to finalise your property division or obtain a Divorce Order, you will remain financially interconnected with your ex-spouse. This means that your property division may not be finalised for many years after separation and, until your property is finally divided, the period from separation to final division of property will continue to be relevant to how the property is divided. In addition, all your property and financial interests remain susceptible to the final property division, even where purchased many years after separation.
- If you have made a Will in which you appoint your spouse as Executor and/or name them as a Beneficiary, these clauses will continue to have effect, even if you have separated many years earlier. A Divorce Order will cause these clauses of your will to become ineffective.
Requirements for Filing for Divorce
To file an Application for Divorce with the Court, you will need to satisfy Court of the following requirements;
- You are married, and your marriage has irretrievably broken down.
- You have been separated and living separately from your ex-spouse for at least twelve (12) months. If you have not been living separately from your ex-spouse for twelve (12) months but have been separated under one roof, you must advise the Court on the specifics of this arrangement. For example, this may include that you have been sleeping in separate beds and not maintaining any intimate relationship. These factors will sufficiently convince the Court that the marriage has broken down (point 1 above).
- That you have been married for at least two years. If you have been married for less than two years, you must attend relationship counselling and provide the Court with a certificate confirming the same. If relationship counselling is not appropriate in your matter, you must provide the Court with evidence advising as to these circumstances.
Joint Application for Divorce vs Sole Application for Divorce
Sole Application for Divorce
A joint Application for Divorce is submitted to the Court on behalf of both parties. It is common that one party (or their legal representative) drafts the Application and provides a copy for the other party to sign. If the parties are amicable, some parties may choose to share the cost of the Court filing fee.
A sole Application for Divorce is completed and filed by one party. That party will be solely responsible for the Court filing fee. Once the Application has been filed with the Court, the filing party must serve the Application for Divorce on the other party. This is commonly achieved by way of personal service by a process server. The filing party must instruct the process server by providing them with the necessary documents and instructions for service. Depending on the location of the person being served, this may be a costly exercise. Alternatively, if the filing party is confident that the other party will receive and acknowledge the Application for Divorce via post, they may attend service this way. The receiving party must return a signed Acknowledgement of Service to the filing party and file this Acknowledgment along with an Affidavit of Service (by post) with the Court.
Joint Application for Divorce
A joint Application for Divorce removes the requirement to serve the Application on the other party. This can make the Divorce process much quicker and cheaper. While both parties will need to sign the Application, it does not need to be personally served via a process server, and there is no need to prove service by way of an Affidavit of Service.
Divorce Hearings are conducted remotely via telephone. In some circumstances, the parties may be excused from attending. If a Divorce Order is made at the Hearing, it will take effect one month and one day later.
Limitation Period for Property Settlements
The limitation period to finalise your property division commences at the date of your Divorce Order becoming final (one month and one day after the Divorce Order is made). The limitation period is twelve (12) months. If you have been unsuccessful in negotiating a property division and the twelve (12) month limitation period is nearing, you may need to consider commencing proceedings in the Federal Circuit and Family Court of Australia to protect your property interests before the limitation period expires.
You will need to seek permission from the Court if you intend to commence Court proceedings in relation to property matters once the limitation period has expired.
While there is often no need to obtain a Divorce Order urgently, we recommend that you finalise your property division prior to making an Application for Divorce to ensure that the limitation period for property division does not expire. After your property is divided, we recommend obtaining a Divorce Order to ensure that you no longer legally marry your former spouse.
This article was written by Delaney Roberts Specialist Family Lawyers. Delaney Roberts Specialist Family Lawyers is a team of compassionate Lawyers who have chosen to specialise in Family Law, so they can help individuals navigate periods of significant change to their family circumstances. Their mission is to secure the best future for every client and their family.
