Divorce Lawyer Mandurah. Paterson & Dowding specialises in family law and has a team of highly skilled divorce lawyers in Perth. Paterson & Dowding’s divorce lawyers are devoted to building and maintaining strong and meaningful client relationships.
Our family lawyers are located in Perth, Joondalup and Mandurah (and remotely via phone and Zoom), making it easy for you to meet with family law specialists. Our team of family lawyers are here to assist you with your divorce, including your financial settlements and issues involving children.
If you are applying for a divorce in Australia, there is a “no-fault” system of divorce. This means there is a single ground for divorce. This means the person applying for divorce must show that the marriage has broken down “irretrievably”. In order to do this, they must prove that they have separated and lived separately and apart for a continuous period of 12 months before filing an application for divorce. While they must be continuously separated for a period of 12 months, the legislation does encourage reconciliation by allowing cohabitation for one period of up to 3 months without nullifying the prior period of separation.
If you have children under 18 years of age, the Court cannot make a divorce order unless it is satisfied you have made proper arrangements for their care, welfare and development.
We can prepare your divorce application for you or alternatively, the Family Court now allows you to file your divorce application online. We are happy to help you prepare an application for divorce.
What is Divorce?
A divorce is the legal dissolution of a marriage by the Court.
How to apply for a Divorce in Mandurah
We can prepare the divorce application, organise for the respondent to be personally served with these documents, and represent you at the mandatory Divorce Hearing at the Family Court.
We can also help you with other common issues arising following separation, such as parenting issues, child support, property division and spousal maintenance.
The requirements to get a Divorce in Mandurah
A divorce application can be brought by either party to the marriage or jointly by both parties to the marriage. For a divorce order to be granted, the marriage must have broken down irretrievably. Broken down irretrievably means the court is satisfied that the parties separated and lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of filing the application for divorce.
Divorces involving children
Where children are involved, the Family Court will not grant a divorce order unless it is satisfied that either, the children are 18 or older, the children are under 18 but proper arrangements have been made for their care, welfare and development (ie financial support, education, housing and medical needs) or there are circumstances where the divorce order should take effect anyway (for example, the whereabouts of the other party are unknown).
If the Court is not satisfied that arrangements for the care, welfare and development of a child have been met, it may adjourn proceedings until a report has been obtained from a family consultant.
A child is a child of the marriage if they were treated by the husband and wife as a child of their family at the relevant time. This includes ex-nuptial children of either party, adopted children by either of them or a child who is not a child of either of them. The relevant time is the time immediately before the husband and wife separate, or, if they’ve separated on more than one occasion, the time immediately before they last separated before the divorce order application was made.
Remarrying after a Divorce
A party may remarry when the divorce order has taken effect.
What you need to know before you get Divorced
Most couples are completely unprepared for divorce and this lack of preparation, plus a lack of knowledge and understanding about what it takes to dissolve a marriage, can make a difficult and distressing time even more complicated and combative.
The more you know about divorce before you embark on the journey, the better for everyone involved.
From the cost of the actual divorce itself to alternative legal approaches, this article covers a few of the things that you need to know before you get divorced, but given that it’s an emotional, sometimes complicated and often challenging time, it’s always advisable to get professional help early on in the process.
In Australia, there are three separate legal procedures that have to be completed in order for a marriage to be completely dissolved, namely the granting of the Divorce Order, property settlement (dividing up the assets) and parenting arrangements (if there are children of the marriage). Very often, getting divorced is the most straightforward aspect of the relationship breakdown and the separate legal processes of formalising parenting arrangements and working out a financial settlement can be much more contentious and lengthy.
If the couple has children under the age of 18, the Court will only grant a divorce if it is satisfied that reasonable arrangements have been made for their care, including financial support, education and housing.
Living together after you are separated
The Family Court can aggregate the periods of separation if the parties resume cohabitation on one occasion for not more than 3 months. The period of cohabitation is not included as part of the period of separation. Resuming a sexual relationship does not in itself constitute a resumption of cohabitation, it is one factor amongst many considered. Agreeing to resume cohabitation but not actually resuming cohabitation is not re-cohabitation. Where re-cohabitation occurs after a divorce order is filed, the court considers whether there is a likelihood of further re-cohabitation.
Getting a Divorce if you have been married less than two years
If the parties filed a divorce application and it is less than two years since you were married, they must file a signed certificate stating they have considered reconciliation with the assistance of a family counsellor or an individual or organisation nominated by a family consultant. Parties are exempt from needing a certificate if there are special circumstances and an affidavit is filed in support of the application. You should obtain legal advice in such circumstances.
Separation and Divorce Law
When looking at whether a party has separated, the court looks at the action, intention and communication between the parties. Separation involves more than mere physical separation needed, it involves the breakdown of the marital relationship whereby at least one of the parties intends to and acts on severing or not resuming the marital relationship. For instance, in Campbell & Cade (2012) the court held the parties had not separated because they still acted as a couple by maintaining a sexual relationship, attending social functions together, staying in hotel rooms together and operating a joint bank account.
The Family Court will not grant a divorce order if it is satisfied there is a reasonable likelihood of cohabitation being resumed.
Preparing a Divorce application
To prepare a divorce application, you can use the Family Court’s online divorce application. Alternatively, one of our family lawyers can help you prepare the application and:
- a Paterson & Dowding family lawyer will arrange for the respondent to be personally served with the necessary documents;
- represent you at the mandatory Divorce Hearing at the Family Court; and
- assist with other common issues arising following separation, such as parenting issues, child support, property division and spousal maintenance.
Please contact us to prepare your divorce application. Alternatively, the Family Court now allows you to file your divorce application online. Visit the website of the Family Court of Western Australia and follow the prompts. We are happy to help prepare your online application.
When does a divorce order take effect?
A divorce order takes effect 4 weeks from the date of the hearing. The Family Court may delay this time if it is satisfied, there is a possibility of an appeal. The Family Court may reduce this time if it is satisfied, there is a special circumstance that justifies doing so.
If an appeal is instituted before a divorce order has taken effect, the divorce order takes effect at the expiration of one month from the day the appeal was determined or discontinued. If either party dies before the divorce order takes effect, the divorce order does not take effect.
Getting a Divorce when you have property or children
A divorce does not deal with property or parenting issues (except where the children’s welfare, care and development is being looked after). Property division and parenting arrangements will need to be dealt with separately.
Property and maintenance claims
Does divorce affect my ability to bring a property or maintenance claim?
Once a divorce order takes effect or the marriage is considered void, the parties have 12 months to institute property or maintenance proceedings unless they both consent or the Family Court grants them leave.
The Family Court will not grant leave unless hardship would be caused to a party or child if leave is not granted or in relation to maintenance, at the end of the period within which court proceedings could’ve been instituted without leave, the circumstances of the applicant were such that they wouldn’t have been able to support themselves without an income-tested pension, allowance or benefit.
Frequently asked questions about Family Law
Can I Get A Divorce If We Are Not Australian Citizens?
When an application for a divorce order is filed, one of the parties must be a citizen, regard Australia as home and intend to live indefinitely in Australia or ordinarily reside in Australia for 12 months before filing the application.
Citizenship is gained by birth, adoption, formal approval or being abandoned in Australia. If citizenship has been granted by formal approval ie a citizenship certificate, that approval is required by the court. The onus of proof for a change of domicile rests on the person asserting the change.
Can I Get A Divorce If We Got Married Overseas?
If the parties were married overseas, you should provide the original or certified copy of the certificate, entry or record of the marriage from the foreign country, and if it isn’t in English, an affidavit translating those documents.
How To Prove Marriage In Court?
If the parties were married in Australia, you should provide the original or certified copy of the marriage certificate. If the parties were married overseas, you should provide the original or certified copy of the certificate, entry or record of the marriage from the foreign country, and if it isn’t in English, an affidavit translating those documents. If the marriage certificate is not available, for example, it’s been destroyed, evidence of a marriage ceremony in accordance with family laws and customs of where the marriage occurred should be provided.
How Long Does A Divorce Take?
When the divorce application is filed, you will be given a Divorce Hearing date, which is when the divorce application is considered by the Family Court. This is usually between one to three months from the date of filing the divorce application.
Can The Court Rescind A Divorce Order?
If a divorce order has been made but not yet taken effect, the court may rescind the order if the parties have reconciled or rehear the proceedings on the grounds of fraud, perjury, suppression of evidence or any other reason it thinks fit on the application of one the parties or the Attorney-General. The divorce order cannot be appealed after it takes effect.
Can You Oppose A Divorce Application?
If you have been separated for more than 12 months you cannot oppose a divorce application unless the court does not have jurisdiction or there has not been 12 months’ separation as alleged in the divorce application.
How To Oppose A Divorce Application
If you do not want the divorce granted, you must complete and file a Response to Divorce setting out the reasons you seek the dismissal, and then appear in person at the divorce hearing date. You should file the Response to Divorce within 28 days of receiving the divorce application if you are in Australia or within 42 days if you are outside of Australia.
Will Getting A Divorce Affect My Will?
A party’s will is revoked by divorce unless it is made in contemplation of the divorce (ie the impending divorce is written in the will) or other evidence establishes such an intention.
How Much Does A Divorce Cost?
There is a filing fee for divorce applications. Current fees are available on the Fees page of the Family Court.
In some cases, for example, if you hold certain government concession cards or you are experiencing financial hardship, you may be eligible for a reduced fee. To be eligible for a reduced fee for a joint application, both you and your spouse must qualify for the same reduction. If only one spouse qualifies for the reduction, then the full fee applies.
Can The Court Nullify My Marriage Instead?
The Family Court may make what is known as ‘decree for the nullity of a marriage’ if they deem the marriage void.
Am I Eligible To Have My Marriage Nullified?
A ‘decree of nullity of marriage’ can be instituted by either party to the marriage or jointly by both parties.
A marriage may be nullified for any of the following reasons:
- either party at the time of the marriage was lawfully married to another person.
- the parties are related ie siblings (whether whole or half), ancestors or descendants.
- either party was under 18 years old unless the person is 16 or over and the court deems the circumstances so exceptional and unusual as to justify the marriage.
- the union was performed in a foreign country between a man and a man or a woman and woman.
- consent was invalid because it was obtained by duress or fraud.
- that party is mistaken as to the identity of the other party.
- that party is mistaken as to the nature of the ceremony performed.
that party is mentally incapable of understanding the nature and effect of the marriage ceremony.