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Divorce

Our divorce lawyers are skilled and experienced at providing solid, practical and common-sense legal advice when you need it most. We understand that the end of a marriage is an emotional time. It’s difficult, but it’s important to get legal advice from a qualified and experienced divorce lawyer. A divorce lawyer is essential to ensure you protect yourself and your family.

How to get a divorce in Australia

Step 1

Ensure you meet the eligibility requirements

In order to get a divorce in Australia you must meet the eligibility requirements:

  • the marriage must have broken down irrevocably;
  • you must have made arrangements for the children;
  • you must be able to show you have ceased cohabitation for 12 months;
  • meet the residency and citizenship requirements;
  • you must pay the requisite filing fee; and
  • if married for less than 2 years, you must attend counselling.
Step 2

Prepare and File an Application for Divorce

You can apply to the court for a divorce on your own (Sole Application) or with your former spouse (Joint Application).

If you are applying to get a divorce on your own, only you are required to sign the divorce application. You are required to serve the application on your former spouse. Your former spouse will have 28 days to respond to the divorce application.

If you are filing for a divorce as a joint applicant, both parties are required to sign the application.

To file the application, you must pay the prescribed filing fee and lodge it with the Federal Circuit Court. You must include a copy of your marriage certificate and if applying for a sole application you must prove that you served the divorce application on your former spouse.

Step 3

Attend the hearing

You will need to attend the divorce hearing if you make a sole application and there is a child of the marriage currently under 18. Otherwise, you are not required to attend the hearing

Can I get a divorce in Australia if we are still living under the same roof?

Yes, you can get a divorce if you are under the same roof or have lived together for a portion of the 12 month period after separation. You will need to file supporting affidavits in your divorce application that satisfy the court that you are living separate lives, the affidavit should address:

  • change in sleeping arrangements
  • reduction in shared activities or family outings
  • a decline in performing household duties for each other
  • division of finances; for example, separate bank accounts, and
  • any other matters that show the marriage has broken down; for instance, if you have notified family and friends of your separation.

How long does it take to get a divorce in Australia?

Getting a divorce in Australia can be done within a few months of completing the separation period.

Average Divorce Time Length

Stage of Divorce

Description of the stage of Divorce

0 – 12 Months Separation Period You must be separated for 12 months before you can apply for a Divorce.
12 – 14 Months Application Period Drafting and filing the Divorce Application with the court can be anywhere from 1 day to 2 months.

The length of the application period greatly depends on whether you are applying for a divorce as a sole applicant or a joint applicant.

A sole applicant is required to serve the application on the former spouse and give them 28 days to respond.

14 – 18

Months

Divorce Hearing Once the Divorce Application has been filed and served with the court, the court will hold a Divorce Hearing to grant a Divorce Order, this is usually within 4 months from the date of the Divorce Application.

IMPORTANT – You won’t be legally divorced until a month and a day after the Divorce Order is made.

Sole Applicants

Once your application is filed, you will need to ‘effect service’ of the application on another party. We use organisations called ‘Process Servers’ whose job it is to find and give people documents. Once they have effected service, they complete an ‘Affidavit of Service’ swearing that they delivered the documents to the other party. The affidavit will then need to be filed with the Court. This is what is called ‘Proving Service.’

Joint Applicants

Yes, both parties can apply together. This is called a ‘Joint Application for Divorce.’ This makes things a lot easier (if your former spouse will agree).

Property Issues

Once your divorce takes effect (a month and a day after the court makes the divorce order), you have 12 months to resolve your property matters with your former spouse. If you leave things beyond this date, you might be ‘statute barred’ from bringing an application to determine property issues.

If you have been separated for at least one year, you can apply for a divorce.

 Divorce and property settlement are not the same thing.  Divorce ends your marriage so that you are no longer husband and wife.  Property settlement only deals with dividing up your assets and liabilities.  You can have a property settlement without a divorce and vice versa.

 Time limits apply after divorce to ask the court for a property settlement.  If you are in doubt about your position consult a lawyer, preferably an accredited family law specialist, immediately.

 To get divorced you and/or your spouse file a divorce application in the Federal Circuit Court of Australia.  Before granting a divorce, the court must be satisfied of the following:

  • That you have lived separately and apart for at least 12 months prior to the filing of the divorce application.
  • That there is no reasonable likelihood of you resuming married life.
  • If there are children under 18, that there are proper arrangements in place for their care.
  • If you have been married less than two years that you have attempted reconciliation counselling.

 More specific questions on divorce are answered below.

My spouse will not agree to a divorce

You don’t need your ex’s agreement to get a divorce.  As long as you have been separated for at least 12 months and can show that there are proper arrangements for any children, you can apply.  The process is a little more complicated and many people find it a bit daunting.  Please call us if you would like us to assist.

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.

I separated on the first day of September 2019.  What is the earliest date on which I can file my Application for Divorce?

The earliest date you could sign and file your application would be the 2 September 2020.  In layman’s terms the one year’s separation is a year and one day.  It is the same with the divorce order.  If your divorce is granted on 1 March 2018, it would become final on 2 April 2019.

I have separated from my wife, how soon can I remarry?

In order to remarry you must be divorced.  You must wait one year from the date of your final separation before you can file for divorce.  After filing the documents, your divorce is listed for hearing by a court.   The hearing date will be at least one month and sometimes up to three months after you file.  If the court grants your application your divorce becomes final one month later.  You cannot remarry until the divorce is final.

E.g John and Linda separated on 1 January 2012.  The earliest either can sign or file an application for a divorce is 2 January 2013.  They file their application on 3 January the court lists the application for a hearing date on 28 February.  The divorce order is made that day.  However the order will not take effect until 30 March.  John and Linda are divorced free to marry after 30 March.

In certain circumstances the court will lessen the time between the filing and the hearing date and between the divorce order and the date of its effect.  But the court cannot lessen the time between separation and the earliest time for filing the application.  See below for more information.

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.

E.g.  Linda is unhappy in her marriage and tells John it is over.  John doesn’t accept this and wants to make a go of things.  Linda disagrees and moves out of their home.  It doesn’t matter that they disagree, all three requirements are met and they are separated.

My wife and I are separated but have continued to live under the same roof.  Can we get a divorce?

People remain under the same roof for various reasons after separation.  The reasons can be financial such as waiting for a home to sell or the inability to afford separate households.  You can obtain a divorce if a friend or adult family member corroborates that you have been separated for at least one year.  That person is required to swear an affidavit confirming they visited your home regularly and observed a change in your household after separation e.g. that you and your spouse had separate bedrooms, you told friends and family you were separated, you didn’t perform household chores for each another or eat your meals together.

E.g.  John and Linda agree that the marriage is over but financially neither can afford a separate residence.  John moves into another bedroom and they stop attending social events together and tell their family and their friends that they have called it quits.  They also open separate bank accounts and operate a “kitty” where they contribute equally to joint expenses such as rent and electricity.  They are separated and can apply for a divorce once they have been living in this way for a year or more.

How do I get divorced?

Divorce is a legal process involving making an application to the Federal Circuit Court which is then listed for a hearing date and the relevant issues considered.  If the court is satisfied that you meet all the legal requirements your divorce will be granted.   I certain circumstances you may or may not need to appear before the court.   If you are in any doubt about the requirements that apply to your situation we recommend that you contact a lawyer, preferably an accredited family law specialist who can provide relevant advice and can bring the application on your behalf to ensure all the legal requirements are satisfied.

My husband is not paying any Child Support for our children.  Can he get a Divorce?

Where there are children under 18, a court will only grant you a divorce if proper arrangements are in place for their care.  That includes matters such as the payment of child support and children spending appropriate time with both parents.

If the person wanting the divorce is the party in the wrong their divorce application may be refused.

E.g. Sally who has not been paying her assessed child support for some time applies for a divorce.  Her husband, Jim objects on the grounds that there are not proper arrangements in place for their children.  The court may reject or adjourn Sally’s application until the child support arrangements are satisfactorily resolved.

 E.g Jim is the primary carer for the 3 children he and Sally have together and they live mainly with him. Despite Jim’s efforts Sally rarely sees the children.  Although a court might view the lack of time with Sally as being unsatisfactory, if it accepts that the arrangements for the children are appropriate and any problems are not Jim’s doing, it will grant the divorce.

My marriage was an absolute disaster and we separated within a year, are there any special rules that apply?

If you have been married less than two years at the date you file your application you must attempt reconciliation counselling before filing.  As you can’t file until you have been separated for at least one year this rule only applies to very short marriages – effectively ones that lasted one year or less.

I haven’t seen my husband in years and I don’t know where he is.  Can I get a divorce?

Yes, but the evidence you will need to put before the court will involve more issues that if you are able to serve the divorce papers on him in the usual way.   If you contact a lawyer preferably an accredited family law specialist they will be able to help you get around the road blocks.

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