Divorce process, application and requirements in Western Australia.
Divorce happens when a marriage is legally terminated with a divorce order. Divorce ends the marital relationship, enabling you to remarry if you wish to.
It’s important to note that divorce does not resolve issues related to children’s matters or property settlement. Those processes need to be conducted separately from the divorce process.
As with all legal matters, we encourage you to seek legal advice specific to your circumstances.
The process of getting divorced in Western Australia involves several steps. Here is a breakdown of the process and requirements:
The process of getting divorced in Western Australia involves several steps. Here is a breakdown of the process and requirements:
Spouses should arrange issues with parental responsibility and assets division separately. These proceedings can commence before completing the 12-month separation period. For these matters, you may need legal advice.
The above is a broad outline, and the process can vary depending on circumstances, so it’s advisable to seek legal advice or visit the Family Court of Western Australia website for detailed and up-to-date information.
Remember, while navigating the legal process, looking after yourself and your emotional and psychological health is essential.
In Western Australia, as in the rest of Australia, the only ground for divorce is the irretrievable breakdown of the marriage. There is a no-fault divorce system which means that the Family Court does not consider who is to blame for the end of the relationship. You don’t need to give the Family Court a reason to get a divorce order.
Couples must only demonstrate that they have been separated for at least 12 months and one day and that there is no reasonable likelihood of reconciliation.
The requirement to separate for at least 12 months before applying for a divorce is established by Australian law, as set out in the Family Law Act 1975. This period serves a couple of purposes:
Opportunity for Reconciliation: The primary purpose is to provide ample opportunity for couples to reconcile and possibly resume their marital relationship. A year gives enough time for emotions to settle and allows for reflection on the relationship. It also lets couples seek counselling or mediation services to help resolve any issues.
Proof of Irretrievable Breakdown: The second purpose is to serve as evidence that the marriage has irretrievably broken down. The assumption is that if a couple has been living separately for at least 12 months, they will likely not reconcile.
The separation period must be continuous, although a short (less than three months) reconciliation period is allowed. If the couple reconciles but then separates again, the periods of separation before and after the reconciliation can be added together to meet the 12-month requirement, provided the total period of reconciliation does not exceed three months.
While the separation must be at least a year, the couple doesn’t have to wait until the end of the year to resolve other issues related to the divorce, such as property division and arrangements for children.
Having a Family Lawyer to get a divorce order is not mandatory, but we strongly encourage it, especially if children and property are involved.
In addition to that, Family lawyers can also help in negotiating agreements between you and your spouse, which can make the divorce process smoother and less adversarial. When communication between partners is challenging or strained, having a lawyer can facilitate better communication and negotiation.
Contact our Family Law Practice in Applecross to speak with one fo our lawyers.
Opportunity for Reconciliation: The primary purpose is to provide ample opportunity for couples to reconcile and possibly resume their marital relationship. A year gives enough time for emotions to settle and allows for reflection on the relationship. It also lets couples seek counselling or mediation services to help resolve any issues.
Proof of Irretrievable Breakdown: The second purpose is to serve as evidence that the marriage has irretrievably broken down. The assumption is that if a couple has been living separately for at least 12 months, they will likely not reconcile.
The separation period must be continuous, although a short (less than three months) reconciliation period is allowed. If the couple reconciles but then separates again, the periods of separation before and after the reconciliation can be added together to meet the 12-month requirement, provided the total period of reconciliation does not exceed three months.
While the separation must be at least a year, the couple doesn’t have to wait until the end of the year to resolve other issues related to the divorce, such as property division and arrangements for children.
If you have been married for less than two years, there is an additional requirement to attend counselling and explore possibilities for reconciliation before you can apply for a divorce. If counselling does not result in reconciliation or is not possible for other reasons, you can apply for permission to proceed with the divorce.
You can proceed with a divorce even if your spouse does not agree to it. The consent of both parties is not required to obtain a divorce in Western Australia or elsewhere in Australia.
If your spouse does not agree to the divorce, you can file a sole application for divorce. This means you are the sole applicant, and your spouse is the respondent. After filing, you will need to serve the divorce papers to your spouse, following serving the legal documents to the respondent. Your spouse will then have the opportunity to respond to your application.
If your spouse does not respond within the specified timeframe or responds but does not oppose the divorce, the Court can proceed with the divorce application. If your spouse opposes the divorce, they must provide evidence to the Court challenging your claim that the marriage has irretrievably broken down, which is generally quite difficult given the ‘no fault’ principle.
A spouse’s refusal to agree to a divorce does not prevent the divorce from happening, but it may prolong the process. In such cases, obtaining legal advice can be beneficial to navigate the process.
We take time to listen and understand your situation at every stage be it the initial consultation or during the court proceedings.
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From providing legal advice and negotiating your claims to reaching a settlement and representing on your behalf in Court, we strive to communicate openly and clearly, without using legal jargon.
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If you are in a de facto relationship or marriage and your relationship has come to an end, then you will have to decide how to finalise your financial arrangements and divide your assets. We understand the challenges you may be facing during separation or divorce, and we are can provide legal advice and help you reach the best outcome to your family.
If you need advice regarding your divorce or any other family law matter, please contact our Family Law team in Perth to schedule an initial consultation.