Divorce is the official legal ending of a marriage. Obtaining a divorce order from the Family Court means that your marriage has formally ended and you can remarry.
You do not have to prove ‘fault’ in a divorce application. The only ground for divorce is the irretrievable breakdown of the marriage and this is proved by:
- separation for a period of at least 12 months immediately before you ask for a divorce; and
- one of the parties to the marriage stating that there is no chance of reconciliation.
If you have children under the age of 18 years, the Court will not grant a divorce unless it is satisfied that there are proper arrangements for the children’s financial support, education, housing and generally their proper care and maintenance. Agreeing to a divorce does not mean that you necessarily agree with the current arrangements for your children as a continuing arrangement (who they live with and who they spend time with).
You will need to apply to the Family Court of WA by filing the appropriate form. The Family Court of WA has a divorce kit that has all the forms and information that you will need.
If you are filing the application on your own, then you must provide copies of the documents you filed to your former spouse by serving the documents on him or her. If you and your spouse sign the application then you do not need to serve it on each other.
You can only sign and file a divorce application if you have been separated for an entire 12 months, counting the day you separated. An easy way to work this out is to remember the date you separated then pick the day after this date the next year. You can sign and then file your divorce application any time after this date.
You are ‘separated’ from your husband/wife when you no longer living together as husband and wife and one of you let’s the other know that he or she believes that the marriage has broken down. Your husband/wife does not have to agree to the separation. It is possible to be separated but still living in the same house.
You may attempt to reconcile during the 12 month period for a maximum period of 3 months. If your attempt at reconciliation fails, then the separation period continues on from prior to the attempted reconciliation. For example, if you separate for 4 months, then reconcile for 2 month, and then separate again, you need only wait another 8 months before you file your divorce application.
It is a requirement of the Court that you attend counselling with an approved family and child counsellor, if separation occurs within 2 years of marriage.
If you would like further advice please don’t hesitate to contact us to make an appointment.