Divorcing When Married For Less Than 2 Years

When is the two-year period calculated from?

The two-year period is calculated from the date of the marriage to the date you apply to the Court for a divorce. Additionally, you and your spouse must have been separated for at least 12 months before filing for divorce.

What steps should I take?

If you have been married for under two years and want to file for a divorce, you must either:

1. Attend counselling with a family counsellor or chosen counsellor to explore the possibility of reconciling with your spouse. OR 2. If you haven’t attended counselling, obtain the Court’s permission before applying for a divorce.

Participate in Counselling

Before applying for a divorce, you and your spouse must attend a session with a counsellor to explore the possibility of reconciliation. If you need assistance finding a counsellor, you can:

• Visit https://penroselawyers.com.au/ or
• Call 1800 473 676

Request the counsellor to complete a counselling certificate confirming they have discussed reconciliation with you and your partner.

You can obtain a blank counselling certificate from www.fcfcoa.gov.au, by calling 1300 352 000, or at your nearest family law registry. Bring the certificate to the appointment for the counsellor to complete.

Note: You must attach the completed certificate to the back of the Application for Divorce when lodging it.

If you choose not to attend counselling

If you do not attend counselling with your spouse, you will need the Court’s permission to apply for a divorce. To obtain this permission, you must file an affidavit along with your divorce application.

What is an affidavit?

An affidavit is a written declaration made by a party or witness. It serves as the primary method for presenting evidence (facts of the case) to the Court. You must swear or affirm the affidavit in front of an authorised individual, such as a solicitor or a Justice of the Peace.

In your affidavit, you will need to outline:

Why haven’t you and your spouse attended counselling?

For instance, if you are unable to find your partner, describe the efforts you’ve made to locate them. Alternatively, if your partner is unwilling to attend counselling, detail the attempts you have made to encourage their participation.

Any unique aspects of your situation.

For instance, if there has been a history of violence and abuse in the marriage, and it is unsafe for you to attend counselling with your spouse.

Am I required to attend court?

If you’ve made a sole application and there’s a child of the marriage under 18 years old, you must attend the court hearing. In all other cases, as long as you outline the circumstances of your separation and submit the required affidavits to the Court, attendance at the court hearing is not necessary. If the Court needs more information, it will adjourn the case and instruct you to file additional material or to attend the court hearing.

Legal counsel

It’s important to obtain legal advice before filing for a divorce. You can seek legal advice from:

• a legal aid office,
• a community legal centre, or
• a private law firm.

Court staff can assist with inquiries about court forms and the court process but are unable to provide legal advice.

More information

For further details, including access to legislation, forms, or publications referenced in this article:

• Visit penroselawyers.com.au,
• Call 1800 473 676, or
• Visit a family law registry near you.