What if I Don’t Want a Divorce?
For many people, one of the most difficult and distressing times of their life will be the end of a significant and committed relationship. Whether this is a mutual decision made across time or a sudden seismic shift that leaves one party shocked, any separation is likely to be felt deeply by all concerned. In the case of marriage, the ultimate severing of the relationship is through divorce.
And for some, a common reaction to an event that is described to them as inevitable is to ask – really? Surely I have some say about whether or not we divorce?
Know the system
It can be helpful to understand a little about how Australian law deals with the end of a marriage. Although the pain is something that takes time to reduce, it can help to have some knowledge about the divorce process. Knowledge after all is power. These are the rights and processes that underpin divorce in Australian family law.
A question of fault?
Australia has a ‘no fault’ system of divorce. What this means is that in Australian divorce law, the court does not look at why the marriage broke down. Unlike other systems, the Australian court is not required to consider any issues such as hurt, infidelity, or personal shortcomings.
The basic requirement for lodging a valid divorce application is that the couple has separated for 12 months or more, with no chance of reconciliation.
One thing that courts will insist upon however is that any children of the relationship have been considered before a divorce can be finalised. Further, there are timeframes that must be met.
Time and processes
The process of obtaining a divorce involves the court being satisfied that a married couple has lived separate and apart for at least 12 months. After this time, the marriage will have considered to have broken down irretrievably with no chance of reunion.
Separation does not necessarily mean living in separate residences. Two married people can live together under the one roof if it is established that they are living separate lives. This will involve looking at issues such as sleeping arrangements, sexual relationship, interaction, and outside knowledge of the separation.
The family law system allows one or both parties to the marriage to file an application for divorce in the Family Court. The court’s website has information on the forms, fees and requirements. It is a good idea to do some research on relevant issues, and to seek legal advice for any persisting concerns.
In quite short marriages – of less than two years’ duration – it may be necessary under the law to attend counselling regarding the proposed divorce. If, however, there are issues of violence or the other spouse cannot be located, it is possible that such counselling won’t be necessary.
Having a say
In terms of attendance, where couples agree to divorce, they can in fact simply file this with the court. No attendance is necessary. If there are no children from the union, a sole application can be made, and once again neither party need attend.
If there are children under 18, it may be necessary to attend the divorce hearing in order to let the court know the proposed arrangements.
What about opposing the divorce?
Some people simply want to oppose the divorce application. The court is not able to take into account any emotional or historical submissions that a party might want to make about the relationship itself – remember it is not a case of ‘fault’. It is not unusual to feel that the marriage must be maintained for the sake of the children. However, it might be worth obtaining legal advice regarding how the courts look at children’s interests in such circumstances.
A Response to Divorce can be lodged if there are legally valid reasons for opposing the divorce or seeking an amendment. These will generally be restricted to issues around a very short marriage, insufficient time separated, children’s arrangements not yet made, or small errors in the paperwork. It is not an opportunity to generally oppose the application.
Seeking assistance
Psychologically, it can often take one party longer than the other to comprehend the end of a relationship. If a party is experiencing a distressing time around the issue of the divorce, it is vital that they seek out appropriate assistance so that they can navigate their way.
For some people, the legal system can seem alien to their own ideas or cultural heritage regarding marriage and divorce. Tailored advice can be arranged, to assist people to come to terms with some of these challenges.
Experienced family relationship counsellors are at hand to help both parties to adjust to the changes occurring in their lives.
If your feelings are clouding your judgment and making it hard to understand the divorce process, find an understanding family lawyer who can help you understand your rights.