In short, divorce is the dissolution of a marriage. Australia has adopted the no-fault system. The only requirement for a divorce is an irretrievable breakdown of the marriage. This is reinforced by the condition that the husband and wife having been separated for a minimum of 12 months, with no likelihood of getting back together.
To apply for a divorce, it is required that you or your former spouse must have been separated for twelve months and fit one of the following criteria:
- Being an Australian citizen;
- Living in Australia; and
- You regard Australia as your permanent home.
If you and your spouse have been married less than two years, then it is required that you both first attend a mediation session and obtain a certificate from your counsellor. After this step has been completed, then the standard divorce procedures will apply, inclusive of the twelve month separation period.
What is separation?
Some people think that you need to sign a document or register the separation. That is not the case. You are separated if all of the following apply to you and your spouse:
- One or both of you have decided that the marriage is over;
- The decision that the marriage is over has been communicated;
- One or both of you must then act on that decision either by living apart or, if you remain in the same home, by acting in such a way that it is clear that the relationship is over.
Am I able to remarry immediately after divorce?
Once you have received your divorce certificate, your new marital status will not be considered final for another month. You cannot remarry until your divorce is final and has taken effect. As mentioned, in most cases, a divorce order will become final one month and one day after it is made. However, you do not know exactly when your divorce application will be heard or whether the divorce order will be made at the first hearing or at a further hearing.
Further hearings may be required for several reasons, for example, when you have made the application on your own and have been unable to serve the other party successfully or in the instance where the other party opposes the order. Further, there may be a delay with the order taking effect if the other party were to appeal it. It is recommended that you don’t remarry immediately, as this is considered bigamy.
Do I have to wait until after a divorce to reuse my maiden name?
You can revert to your maiden name before, during and after your divorce. If you wish to change the name of your children, it is a requirement for both parents to give consent.
Joint Applicants vs Sole Applications
A divorce can be made by one party (sole application) or both parties (joint application).
Do I have to go to court for a divorce application?
You will need to go to court if the divorce application is a sole application and you have children under 18. If you have children under 18 and it is a joint application, there is no need for you or your spouse to attend Court.
How long does a divorce take?
The divorce will generally be granted around two months from the filing date, in which you will receive a notification via mail. Joint applications are seen as more preferable, particularly in terms of ease.
My husband and I agree on a divorce, do we have to wait a year?
Yes, you still have to wait the year from the separation date before filing your application. There is no way to shorten that period.
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