Divorce Proceedings in Victoria
A client residing in Victoria is seeking a divorce from their partner, citing incompatibility and describing the marriage as distressing. The couple has not yet separated but shares children under 18 who currently reside with the partner. There are significant joint assets involved, and the client may consider seeking spousal maintenance. Allegations of domestic violence have been made, and there have been no prior legal actions or mediation attempts.
Questions about this case
These answers have been verified by a lawyer in the LEAP networkWhat are the legal grounds for divorce in Australia, and how does incompatibility factor into these grounds?
In Australia, the only legal ground for divorce is the irretrievable breakdown of marriage, proven by living separately for at least 12 months with no chance of reconciliation. While incompatibility isn't a legal ground by itself, it can support the claim of a marriage that has irretrievably broken down. Since mental distress has been mentioned as a reason for separation, establishing breakdown is significant, particularly with domestic violence being a factor, which could influence custody and asset division. The separation period is a required step to apply for divorce.
What is the procedure for filing for divorce in Victoria, and how long does it usually take?
To file for divorce in Victoria, you must submit your application to the Federal Circuit and Family Court of Australia, including your marriage certificate. After filing, you need to serve the divorce papers to your partner and ensure they acknowledge receipt. If there are children involved, the court will review their care arrangements. The process typically takes about 4 months from the initial filing to the final hearing, assuming all paperwork is correct and there are no issues.
What are the potential costs associated with the divorce process, including legal fees and court costs?
The costs for divorce in Victoria include court filing fees, generally around $1,000, though reduced fees may be available for individuals experiencing financial hardship. Legal fees can vary widely depending on the complexity of the case, ranging from a few thousand dollars for simpler cases to significantly higher amounts for complex matters involving children and property. Consulting a family lawyer can provide a better understanding of the costs involved.
What conditions must I meet before I can file for divorce, such as a minimum separation period?
You must be separated from your partner for at least 12 months to apply for divorce in Australia. This is a mandatory requirement, even if you continue to live together. As you have not yet started this separation, you will need to initiate it. Given the context of domestic violence, seeking advice on how to safely navigate this separation is advisable.
How could my residency status affect the divorce process or any related legal issues, such as spousal maintenance or property division?
While your permanent residency status does not impact your eligibility for divorce, it may influence matters such as spousal maintenance or property division. Both permanent residents and citizens are entitled to a fair division of assets and can seek maintenance if necessary. Factors like the length of the marriage and contributions made by both parties are taken into account by the court. If your residency status affects your ability to support yourself after the divorce or if you have visa responsibilities, it would be prudent to seek legal advice regarding these matters.
