Difficult Divorce Applications

21 February 2024

Applying for Divorce can be so hard emotionally, that it ends up being put off completely instead of getting closure and finally severing ties. If a separation is final and all reasonable prospects of reconciliation of the marriage have failed, staying married may become a stumbling block to actually “moving on” with a new life and outlook.

Does It Matter If I Do Not Get Divorced After Separation?

There are many reasons why delaying or avoiding the divorce could be a mistake after a final separation (whether or not property settlement and parenting order/agreement have been finalised.)

There are other laws that interact with the laws on divorce including the laws on wills and estates inheritance and family trusts.

Often times, the divorce is only attended to many years after the separation but the other spouse can no longer be located.  This then leads to difficulties proving service of the divorce application which may hinder your divorce going through and add to time and cost.

Once a couple is divorced, there are strict time limits for either of them using the family law courts to start property proceedings, otherwise once expired you cannot use the courts for this without special permission.  For some people who are avoiding financial claims by the other spouse, it may be in their interests to get the divorce done as soon as they are eligible.

Interaction Between Your Will and Your Divorce

According to the Victorian Wills Act 1997:

(1) The divorce of a testator revokes—

(a) any disposition to the divorced spouse of the testator, made in a will in

existence at the time of the divorce; and

(b) the grant of a power of appointment by the will exercisable by or in favour of

the spouse, other than a power of appointment exercisable by the spouse only in

favour of persons who are the children of both the testator and the spouse; and

(c) any appointment made by the will of the spouse as an executor, trustee,

advisory trustee or guardian other than the appointment of the spouse as a trustee

of property left by the will upon trust for beneficiaries that include the children of

the spouse.

Divorcing and Your Will

In such a situation if a disposition (gift of inheritance in your will) was made to your spouse in a previous will, it is then revoked or cancelled after formal divorce. Much depends on the wording of the original will (there are some exceptions if it is clear that the will maker intended the disposition to stay regardless of divorce) but otherwise this is the general rule.

Divorce can also cancel grants of appointment in a will e.g. executor or trustee unless the spouse is only in that capacity to benefit children. This can obviously get confusing and may lead to a result that the will maker did not want. For example, the will maker may not want to totally exclude his ex-wife from all benefits if they can supplement what he has already provided in his will for his children, and allowing for reasonable reimbursement of expenses of administering under the appointment. He may also want the ex-wife to be trustee for grandchildren or nephews and nieces even though the ex-wife is cut out as a beneficiary.

Other problems arise if there is no alternative executor appointed and the ex-spouse is still alive and willing but no one else is appointed to act as executor as a backup.

When To Apply for Divorce?

In order to apply for a divorce, you and your ex-partner must have been separated for 12 months prior to making your application for divorce.

Along with this requirement, you must also fit at least one of the following requirements:

  • be an Australian citizen
  • live in Australia and regard Australia as your permanent home
  • live in Australia and have done so for at least 12 months before the divorce application.

You can apply for a divorce together, which is called a joint application. If you are making a joint application, you do not need to go to court.

You can also apply for a divorce on your own which is called a sole application. If you are making a sole application and you have children under the age of 18 who were part of the family before separation, you must go to court unless there are circumstances that stop you from attending.  Such applications have the further requirement of establishing that the children’s arrangements are “proper”. If you are making the application on your own and there are no children under 18 years old, you also do not need to attend the court hearing.

Property And Maintenance Orders After Divorce

Proceedings for property or spousal maintenance orders may be brought at any time after separation,  but special permission of the Court is required if brought more than 12 months after a divorce order.  There are special requirements before getting an extension of time to start property/maintenance proceedings more than 12 months after the divorce order.

What A Court Considers in Divorce Applications

In Australia, the Family Law Act 1975  established the principle of no-fault divorce. This means that a court does not take into consideration why the marriage ended.

The only grounds for a divorce are that the marriage has broken down irretrievably. That is, that there is no reasonable possibility that you and your spouse will get back together.

In order to satisfy the Court that the marriage has broken down irretrievably you must have been separated for at least 12 months and one day.

If there are children aged under 18, a court will also only grant a divorce if it is satisfied that proper arrangements have been made for them.  If you cannot establish this, you may still be able to have a divorce granted if you can convince the court that the current arrangements are the best that can be made in the circumstances.  It would be wise to seek legal advice about such circumstances to satisfy this test before you fill out your divorce application.

What If We Get Back Together for A Short Time?

Normally you must have been separated for at least 12 months before you can apply for a divorce, but what happens if you were together for a short period of time during that 12 months of separation?

The Court allows you to get back together once for up to three months without restarting the 12-month separation period.

However, if you were to get back together for four months, this would restart the 12-month separation period. For example, if you are separated for four months, get back together for almost three months, and then separate again for eight months, this will be considered a total of 12 months’ separation. But if you get back together for four months then only the last 8 months would be counted as your separated period.

Living Separately ‘Under the One Roof’

In some situations, you may have separated but are still living together for various reasons eg financially can’t afford to move out.

It is still possible to get a divorce even if you are still living in the same house after the separation as long as you lead separate lives.

The court will consider a number of factors when deciding whether you separated ‘under the one roof’, such as whether you share meals and domestic duties, if you share money and bank accounts, if you are still intimate with each other and whether or not your friends and family would consider you as separated.

The Procedure

If you apply on your own, you must arrange for the other person to be ‘served’ with the divorce application. Serving or ‘service’ is giving your ex-partner the divorce paperwork so they know about the Court proceedings. You cannot serve your former partner in person yourself but you can serve them by mail. The Family Law Courts have special rules about the service of documents and forms to prove that the other person was served.

It can take several months from the time you file for your divorce to the actual date of divorce and if there are problems with your application, it may take longer.

At the hearing, if all the paperwork is in order and acceptable, the court will grant a divorce order.

Your divorce will not become final until one month after the hearing, and at that time the Court will issue you with a divorce certificate.  In some circumstances, you can apply to shorten the one-month wait.  You are not legally permitted to remarry until the divorce order is issued.

Complexities With Some Divorces

The divorce process is about dissolving the marriage (previously referred to as dissolution of marriage) and does not deal with other matters in dispute such as property or parenting of children.  It is usually a straightforward application, however, there may be complexities if the application involves any of the following:

  • The other party lives overseas at no fixed address;
  • The other party cannot be located;
  • The separation under one roof is disputed;
  • The proof of marriage date is not ascertainable eg; married overseas in a war-torn area that does not have adequate records;
  • The proper arrangements for the children are in dispute.

If your matter involves any of these issues it is very important to get legal advice before making the divorce application.

How To Reduce the Cost Of Your Divorce

Whilst it may be difficult to make the pain of divorce go away, there are some things you can do to reduce the costs of your divorce.  The court filing fees can be reduced if you can prove financial hardship and complete the relevant form or ask your lawyer to complete it for you.  You can also ask your lawyer to include all costs of the process server’s fees within the quote for the divorce.  Some lawyers may also provide discounts for divorces when done in conjunction with the property settlement, child support agreement, or parenting consent order.

Always get legal advice before you consider doing your own divorce application as there may be impediments to the application and if it fails you will not get a refund of filing fees.