Divorce is the legal process that formally ends your marriage. In practical terms, it is often the ‘easiest’ part of a separation – but perhaps one of the most emotionally charged. Read on for a brief overview of the divorce procedure.
Divorce in Australia is granted on a ‘no-fault’ basis, meaning that the Family Court does not consider your reasons or attribute ‘blame’ for your marriage breakdown. The only consideration is whether your marriage has broken down and there is no reasonable likelihood that you will reunite with your partner. This is known as ‘irretrievable breakdown’.
If you have children under 18, the Family Court must also be satisfied that there are appropriate arrangements in place to care and provide for your children. You need to attest to the existence of appropriate arrangements in your divorce application, but the arrangements do not need to be formalised.
Step 1 – Are you eligible to apply?
You can apply for divorce if you or your spouse:
- Regard Australia as your home and intend to live in Australia indefinitely; or
- Are an Australian citizen; or
- Ordinarily live in Australia and have done so for the previous 12 months before filing for divorce.
You do not need to have been married in Australia to apply for a divorce.
Importantly, you need to have been separated for at least 12 months prior to making an application for divorce. This separation period is evidence your marriage has irretrievably broken down. It is quite normal for parties to be separated but still live under the same roof, especially for financial reasons. This does not prevent you from applying for divorce, as long as you can establish that you were ‘separated as a couple’, despite living together.
If you have been married for two years or less, the Court requires you to attend counselling prior to divorce. You will be required to produce a counselling certificate with your divorce application as evidence of your attendance. If you are unable to attend counselling with your spouse (for example, if there has been family violence), you can seek an exemption by filing an affidavit with your divorce application outlining the reasons why counselling is inappropriate.
Step 2 – How do you apply?
You can apply for divorce on your own, or jointly with your spouse.
In either event you must complete a Court form entitled “Application for Divorce” and produce a photocopy of your formal (Government-issued) marriage certificate. There is also a fee payable to the Court on filing the application.
If you make an individual Application for Divorce, it will need to be personally served on your spouse. You cannot serve your own divorce application on your spouse, so we usually recommend a ‘process server’ is used. If your spouse has a lawyer, the divorce application can be sent to their lawyer rather than served personally.
If you are having difficulties locating your spouse, the Court will consider dispensing the service requirement. However, you will need to make a real effort to locate your spouse before applying for dispensation.
If the Application for Divorce is completed jointly, there is no need for personal service. The document is simply filed in the Family Court.
If you already have other family law proceedings on foot (e.g. a property settlement), you are able to seek a Divorce Order from the Judge as part of the existing proceedings. This does not require any filing of material, as the Family Court already has all the relevant details about you and your spouse.
Your spouse is able to oppose a divorce application if:
- They do not believe you have been separated for at least 12 months; or
- They do not believe Australia is the correct jurisdiction for your divorce application.
To oppose the divorce application, your spouse will need to complete and file “A Response to Divorce” Court form. The most common scenarios where the Court refuses to grant a divorce is if there is disagreement about the separation date or the appropriate processes have not been carried out.
If your spouse has applied for divorce and you agree with the divorce being granted, but there are errors in the application, you can outline the facts you disagree with in “A Response to Divorce” Court form. This ensures the divorce is granted, but on the basis of the correct information.
Step 3 – When do you get the Divorce Order?
Once the Application for Divorce is filed in the Family Court you are given a hearing date. The application for divorce is considered by the Court at this hearing. Hearings are ‘listed’ during business hours and are typically set down for a month to two months from the date of filing of the Court forms.
You must attend Court for the hearing if you have made an individual application, and you and your spouse have children who are under 18.
You do not need to attend Court for the hearing if:
- You have no children under 18; or
- You filed a joint application with your spouse (even if you have children under 18).
Where an individual application is made, your spouse does not need to attend unless they have filed a Response to Divorce.
If the Court is satisfied with the divorce application, it will make a Divorce Order at the hearing. The Divorce Order will not become effective until one month after the date of the hearing.
If you did not need to attend Court for the hearing, copies of the Divorce Order will be posted out to you and your spouse.
Additional information to consider
- A Divorce Order does not reflect any agreement about children and/or how you will divide your property. It is important to ensure these matters are appropriately dealt with and documented.
- You have one year from the date of the Divorce Order to make an application for property settlement. If you do not apply for property settlement within this timeframe, the Court will consider you to be out of time and reject your application (subject to some exceptions, such as if significant hardship would be caused to you or your children).
If you would like to speak to someone about applying for divorce or responding to a divorce application, call us on 1300 654 590 or email firstname.lastname@example.org.
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