Why is a divorce optional?

When a marriage breaks down, one of the first things a person thinks about is obtaining a divorce. Although it is the common word associated with the breakdown of a marriage, a divorce does not address the essential issues related to ending a relationship, as it does not settle the division of property or the care of any children of the marriage.

Property and parenting are two separate and distinct matters; a divorce is not a requirement in order to obtain property or parenting orders, or an agreement. 

It is only necessary to obtain a divorce if you intend to remarry.

The requirements for obtaining a divorce are as follows:

1. You are married;
2. The marriage has irretrievably broken down;
3. There is no reasonable prospect that you will get back together; and
4. You have been separated for at least 12 months.

If there are children under the age of 18 years, a divorce can only be granted if the Court is satisfied that proper arrangements have been made for the care and welfare of the children.

If you do decide to divorce, it does set a deadline to apply for maintenance and/or division of property. You have 12 months from the date of that the final divorce orders are made to file separate applications for maintenance or for the division of property.

Divorce is therefore optional because it is not required to proceed with the division of property or arranging for the care of children. Whether you get a divorce is dependent on your circumstances and is a personal choice.

If you have questions please contact us at frank@franklaw.com.au.

This is not legal advice. 

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