Does Divorce always end in Court?

Posted by Luisa-Maria Maroun on 29 January 2015

When couples separate, the first question they are likely to ask is whether they need to go to Court in order to get a divorce. The simple answer to this is “no”.  Whilst a Divorce Application must be filed with the Court to initiate the divorce process, this does not necessarily mean that a person must physically appear before the Court.  The only time that an applicant will be required to be present at Court is when there are children below the age of eighteen (18) years.

The rationale behind this is that the Court, in considering whether or not to grant a divorce, must ensure that there are suitable arrangements in place for the children of the marriage.  This does not particularly require parents to have a formal parenting plan or parenting orders in place.  So long as the Court has sufficient evidence before it detailing the existing care arrangements for the children, it is less likely to question the parties with respect to parenting arrangements.  The Court is well aware that circumstances change and the living conditions for children may vary with age, changes in residence, children’s growing needs and schooling commitments.  The Court's primary consideration is to ensure that any existing or proposed parenting arrangements meet the best interests of the children.

Very often, people engaged in parenting or property proceedings are under the misconception that a divorce will not be granted until those proceedings have been resolved.  This is not true.  Hearings dealing with the dissolution of the marriage (divorce) are separate to parenting or property proceedings. The Court will grant a Divorce Order even if the parties are involved in ongoing litigation.

As far as the law is concerned, the Family Law Act 1975 founded the principle of no-fault divorce in Australian law.  This means that a Court is not interested in the marriage ending.   The only ground for divorce is that the marriage has broken down irretrievably.  That is, there is no reasonable likelihood that the parties will reconcile and get back together.  As a pre-requisite, parties must have been separated for at least 12 months and one day in order to satisfy the Court that the marriage has broken down irretrievably.

To apply for a divorce, you are required to complete an Application for Divorce and file it with the Family Court and pay an Application fee which is currently $845.  If you wish to obtain more information on the process of applying for a divorce, we invite you to contact our office to speak to one of our experienced practitioners who will be able to assist you with your enquiries and canvass any issues in your personal circumstances.

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