DIVORCE/SEPARATION

Ending a marriage in divorce is a difficult and emotional choice for anyone to make, but the legal process is designed to minimise conflict and pain as much as possible, so that a fair agreement can be achieved.

At Diamond Conway, we work carefully to make the divorce process as smooth and angst-free as reasonably possible, supporting your case through mediation or in court proceedings.

Even though a divorce process will always be a hard time for all involved, Australian law today does not blame either party for the breakdown in the relationship. The law’s foremost priority is to reach a fair agreement, to give each party the best possible opportunity in their new separate life.

We have many years of experience in supporting our clients’ divorce cases to beneficial outcomes, with a respected record of success. Our team includes an accredited specialist in Family Law, partner Tom Doumanis. For legal advice on any aspect of a divorce, call us at Diamond Conway today on 02 9222 8000.

Obtaining a Divorce

Mediation, Court and No-Fault Divorce
The experience of divorce is always hard on any couple, but the legal process to formalise one is straightforward and reasonable.

Obtaining a divorce – that is, the legal closing of a marriage – is only one aspect of a larger process, which will also involve the division of assets and property and custody of children. In those matters, the law favours meditation and negotiation over conflict in court. Even if reaching an agreement is difficult, the Family Law specialists at Diamond Conway can assist you at any stage in the divorce process, and to support your case as far as it needs to go.

In Australia, divorces are handled by one of two courts: the Family Court or the Federal Circuit Court (Federal Magistrates Court). This does not mean you necessarily have to attend court, or even that your case needs to enter into a court conflict. The court is simply the forum where a divorce is discussed and, as and when an agreement is reached, it is validated.

In Australian law, divorce is granted on a no-fault basis. That is, the court does not blame either partner for the end of the marriage. All that needs to be proven in court is that the relationship has broken down permanently. This is guaranteed by the Family Law Act of 1975.

The Conditions for a Divorce

The circumstances of every divorce, like those of every relationship, will be different, but in each case two criteria must be satisfied:

• The court can only grant a divorce if at least one of the partners is an Australian citizen or normally lives in Australia, and intends to go on doing so.
• The relationship must have broken down irretrievably. This is confirmed by at least a 12-month period of separation. This separation could involve the couple living in different homes, but it can also involve them sharing the same accommodation, as long as they are not living together as husband and wife (that is, their relationship remains broken). If a couple reconciles for more than 3 months, but then separates again, the 12-month period must re-start.

Application, Service & Notice

While a divorce always involves negotiating which spouse will receive certain property or assets, or the degree of custody they will have of children, the procedure for formalising the divorce itself usually follows three steps:

• Application: application papers are submitted to the court, by one or both spouses in a marriage. Depending on the circumstances of your relationship, you have the option of filing for divorce together with your spouse, or independently. If you apply independently, you are known as the sole applicant and your spouse is known as the respondent. When the application is lodged, the court will set a hearing date, which is usually 2 months later.
• Service: if you are a sole applicant, the court returns a sealed copy of the divorce, which must be delivered (‘served’) by another person to the respondent. This will inform the respondent of the divorce hearing date.
• Notice: on the hearing date, the court will assess all the circumstances of the marriage and relationship breakdown (including the necessary 12-month separation period). If you and your spouse have made a joint application, or if you do not have children, you do not have to attend the hearing. If the court is satisfied that all the conditions for a divorce have been met, it will issue a decree nisi, a provisional declaration of the divorce. One month and one day later, if there have been no objections or changes in the situation, the decree becomes absolute and the divorce is finalised.

Harmony or Conflict in Divorce Proceedings

In some cases, especially if both you and your spouse agree that you will divorce, legal representation may not be necessary. The Family Court and the Federal Circuit Court websites offer information about how you can file for divorce yourself. If you and your spouse are in agreement, the procedure is clear and straightforward.

Not all divorces will be smooth or amicable, however, and if there is a degree of conflict in your situation, legal advice and support can alleviate much of the pain and stress. Court hearings for divorce can be especially emotional and difficult, but we can assist you with skill and compassion.

Divorces can be especially painful if they involve a sole applicant and a respondent. If you are in either position, at Diamond Conway we can assist you. As a sole applicant you may need help locating your spouse, serving the divorce application or dealing with any opposition from your spouse. If you are a respondent, you may need legal representation to express your objections to the divorce or to dispute the reasons given for it.

Diamond Conway – Expert Divorce Lawyers

Divorces are never easy for either spouse to go through, but at Diamond Conway we have the years of experience and the dependable skill to offer your case the support it needs, whatever your situation. If you need legal assistance with any aspect of a divorce, call us today on 02 9222 8000.