Divorce can be a challenging and emotional time for all involved, but understanding the process can make it easier to navigate. In Australia, divorce is the formal and legal end to a marriage, acknowledging that the relationship has irreparably broken down.
What Is Divorce?
Simply put, divorce is the legal process that formally ends a marriage.
If you and your spouse have reached a point where there is no possibility of reconciliation, you can apply for a divorce after a 12-month period of separation. Every divorce is different; some are amicable and straightforward, others are difficult and emotionally exhausting.
'No-Fault' Divorce In Australia
Australia operates under a 'no-fault' divorce system, which means that the reason for the breakdown of the marriage is not considered by the Court.
This principle, established by the Family Law Act 1975, states that the only requirement for divorce is that the marriage has irretrievably broken down. In other words, the Court only needs to be satisfied that there is no reasonable likelihood that you and your spouse will get back together.
If spouses have been separated for at least 12 months, they can apply for a divorce without providing evidence from either party about why the marriage has ended.
The Role Of The Federal Circuit And Family Court Of Australia
The Federal Circuit And Family Court Of Australia handles divorce applications under Part VI of the Family Law Act 1975.
It’s important to note that divorce proceedings do not resolve issues related to finances, property distribution or arrangements for children (we'll discuss this below). A divorce simply acknowledges that your marriage has legally ended. Separate legal processes will generally address financial settlements and child custody arrangements as required.
This is why it is always recommend that you engage a reputable family lawyer as early as possible to ensure documentation has been completed correctly, and your rights and obligations are being met and protected at all stages.
Who Can Apply For Divorce?
You can apply for a divorce in Australia if you or your spouse:
Are an Australian citizen; or
Live in Australia and consider it your permanent home; or
Ordinarily live in Australia and have done so for at least 12 months before applying.
Note that same-sex married couples can apply for divorce if the marriage is recognised in Australia, and you meet the requirements for divorce under the Family Law Act 1975.
If you were married overseas, and your foreign marriage is recognised in Australia, you will need to provide the Court with a copy of your marriage certificate. If your original marriage certificate is not in English, you need to upload an English translation of the marriage certificate, together with an affidavit from a certified translator.
Married For Less Than 2 Years?
You cannot apply for divorce if you have been married for less than two years unless you attend counselling to discuss reconciliation or under special circumstances. The two years is calculated from the date of commencement of the marriage to the date of filing for divorce.
This is a requirement under law, and shows that you have at least considered and attempted to reconcile with your spouse.
If you don't attend counselling with your spouse, you will need the Court’s permission to apply for a divorce. You can seek this permission by providing an affidavit alongside your divorce application.
Circumstances where an affidavit may be required include:
Your spouse refuses to attend counselling
Your spouse does not respond to requests to attend counselling
There is a history of abuse in the marriage and it is not safe or you to attend counselling
Obtaining permission from the Court to apply for a divorce when you have been married for less than two years is sometimes challenging, which is why it's important to speak with a family lawyer. Our family law team can assist you with preparing an affidavit, and can offer further advice to ensure your rights are being protected as your move through to the next stages.
Requirements For A Divorce Application
To be eligible to apply for divorce, you must demonstrate to the Court that:
You and your spouse have been separated for at least 12 months; and
There is no reasonable chance that you and your spouse will get back together.
Separation can occur even if you and your spouse are still living under the same roof. In such cases, you’ll need to provide evidence of your separation while cohabitating.
When submitting a divorce application, you will need to provide a copy of your marriage certificate, proof of jurisdiction (e.g. citizenship certificate, passport or visa) and a counselling certificate (if the marriage is less than two years as noted above).
Sole Or Joint Applications
You can apply for divorce on your own (known as a 'sole application') or together with your spouse (know as a 'joint application'). A divorce application is generally completed online via the Federal Circuit and Family Court of Australia website.
Note that there is a filing fee that will apply when submitting a divorce application.
If you make a sole application, you are referred to as the applicant, and are required to serve the application to the other party (your spouse, referred to as the respondent). You can serve divorce documents by post or in person.
Note the strict time limits that apply. If your spouse is:
in Australia, the documents must be served at least 28 days before the court hearing.
overseas, the documents must be served at least 42 days before the court hearing.
In joint applications, service of documents is not required, and you are both referred to as joint applicants.
Do I Need To Go To Court?
Attending the divorce hearing is only required if:
you filed a sole application
there is a child of the marriage aged under 18 years at the time of filing
you have indicated that you wish to attend court in the application
the respondent (your spouse) files a response opposing the application
It is also recommended that you attend a hearing if your circumstances have changed since making the application, such as a substantial change to your financial situation, living arrangements or otherwise.
If you want to attend a hearing, even if you are not required to, you should indicate this in your application.
Note that all divorce hearings are conducted electronically. Once a divorce application has been submitted, the hearing details will be available on:
Commonwealth Courts Portal (see ‘Court Events and Orders’ section); and
The court list from 4pm (AEDT) the day prior to the hearing
These details will include the date and time of your divorce hearing, the name of the registrar who will hear and determine your application, and further details of how to attend.
Make sure you have all the documents available to you, including a copy of your application and service documents.
If the divorce is granted, it will be finalised one month and one day later, unless an order is made by the Court to shorten this time period.
What About Children & Finance?
The granting of a divorce does not resolve matters related to finances, property, spousal maintenance or parenting arrangements for your children.
To address these issues, you can:
engage in dispute resolution to resolve any points of disagreement
reach an agreement with your spouse and file it with the Court as consent orders
create a parenting plan or financial agreement
apply for Court orders if you and your spouse cannot reach an agreement (note that time limits may apply)
Children
Where minor children are included, a Court will only grant a divorce if it is satisfied that appropriate arrangements have been made for the child's care In your application, you will need to provide information about any children (including biological, step-children, adopted or dependents).
Be sure to include detailed information regarding how the children spend time with each parent, their communication patterns, as well as their education, health, and financial support.
Where the parties cannot reach an agreement as to the care of the child, further orders may be required. If so, it is always recommended you engage with an experienced family lawyer to ensure your rights are being protected, and so they can work with you towards a realistic outcome for the parties.
Financial
It’s important to be aware that the granting of a divorce sets time limits for addressing financial matters. Most financial and property proceedings must be initiated within 12 months of the divorce order, unless you and the other party have reached an agreement.
As is to be expected, any financial or property settlement should be in writing and prepared by a lawyer to ensure its terms are both drafted correctly and in your best interests. The cost will ultimately vary depending on the extent of your assets, and whether further negotiations are required to reach final settlement.
When Is A Divorce Final?
Once the Court has granted a divorce, the order becomes effective one month and one day after this ruling. Once this time period has passes, a Certificate of Divorce will be issued, officially ending the marriage.
It is recommended that you don't make plans to remarry until your divorce order is finalised, as the divorce process can take time.
You shouldn’t assume it will be finalised at the first court hearing, particularly if you have minor children, or other unique factors add further complexity. This is particularly important in circumstances where a party has not engaged a lawyer to help them, or where your application may be incomplete, or the Court may have further questions they want to satisfy before making a decision.
Note that if you do intend to remarry before a divorce has been finalised, there are further requirements under the Marriage Act 1961 that must be met before a wedding can take place.
Get Legal Advice
If you're considering divorce or need assistance with any aspect of the process, it's essential to get proper legal advice as soon as possible. Without it, you may place yourself and your assets at significant risk.
Contact our experienced family law team today to ensure your rights are protected, and so we can help you navigate your divorce smoothly and efficiently. For over 40 years, we have assisted thousands of couples navigate a relationship breakdown, and understand that every relationship is unique.
That's why we offer new clients a free 30 minute consultation with our family lawyers so they can understand your situation and how we may be able to assist you. Click the button below to make an appointment now.
Disclaimer: This publication is not intended to be comprehensive, nor does it constitute legal advice. We are unable to ensure the information is current and there is no guarantee in relation to accuracy. You should seek legal or other professional advice before acting or relying on any of the content of this publication. The views and/or opinions expressed in this publication is that of the author and may not necessarily represent the views and/or opinions of RHC Solicitors.
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