Divorce & Separation
The best way to get a true understanding of your personal choices, obligations and the impact of divorce for your specific circumstances is always to talk to an experienced family lawyer, and we hope to assist you in this regard.
Whilst we recommend that you obtain legal advice specific to your personal circumstances, we provide the following information as an overview of what to expect when applying for a divorce.
What is Divorce?
A divorce is defined as the legal dissolution of a marriage by a Court or other competent body.
The Family Law Act 1975 established the principle of no-fault divorce in Australian law. This means that a court does not consider which partner was at fault in the marriage breakdown. The only ground for divorce is the irretrievable breakdown of the relationship, which is demonstrated by 12 months of separation.
An Application for Divorce is distinct and separate from other areas of family law, such as formalising arrangements for children, or the division of matrimonial property.
Divorce Orders govern the termination of the marriage between the parties only.
You can apply for a Divorce Order if you and your spouse have been separated for at least 12 months, and you or your spouse:
- Regards Australia as his/her home and intend to live in Australia indefinitely; or
- Is an Australian citizen by birth, descent or granted Australian citizenship; or
- Lives in Australia and has done so for 12 months immediately before filing the divorce.
If you were married overseas, you can apply for a divorce in Australia as long as you meet the criteria above.
A divorce application can be applied for by one party alone (a sole application) or both spouses together (a joint application).
The Divorce Application Process
Step 1 – Separation
In Australia, you must have been separated for at least 12 months before you may apply for a divorce.
If it has been less than two years since the date that you and your spouse were married, and either / both of you want to apply for a divorce, you must either:
- Attend counselling with a family counsellor or nominated counsellor to discuss the possibility of reconciliation with your spouse. You will need to obtain a counselling certificate from the counsellor that states he/she has discussed the possibility of reconciliation with you and your spouse. You need to attach the completed certificate to your Application for Divorce at the time the Application is filed.
- If you have not attended counselling, you are required to obtain the permission of the Court to apply for a divorce. You can seek the Court’s permission by filing an Affidavit with your Application for Divorce, which sets out your specific circumstances, including your reasons for not attending counselling.
You may be exempt from obtaining a counselling certificate if there is a history of violence or it is not reasonable to do so.
The two year period is calculated from the date of the marriage to the date of applying to the Court for a divorce.
If any of the above circumstances are similar to your own, or you are unsure, we invite you to contact us for legal advice specific to your circumstances, as there may be additional requirements that you must meet.
Step 2 – Application to the Court
An Application for Divorce may be made solely, by one spouse, or jointly by both spouses.
Applications for Divorce may be completed electronically by registering with the Commonwealth Courts Portal. Alternatively, you may still submit a hard-copy Application to the Federal Circuit Court of Australia.
The Court charges a fee to file an Application for Divorce. This fee is the same regardless of whether the Application is made solely or jointly.
If you hold certain Government concession cards or you can demonstrate financial hardship, you may be eligible for a reduced fee for an Application for Divorce (both parties must be eligible if filing a joint application).
We would be pleased to assist you if you have any questions about completing the Application for Divorce including applying for a fee reduction.
Step 3 – Hearing of the Application for Divorce
Upon filing the Application for Divorce, the Court will provide you with a Hearing date. It is on this date that your Application for Divorce will be heard, and the Court will decide if a Divorce Order will be granted.
Court attendance is only required if you have filed a sole application and there is a child of the marriage aged under 18 years at the time of filing, or, you have indicated that you wish to attend (in question 2(a) of the Application).
There are other circumstances were you should attend Court for the Hearing of your Application, for example:
- if you are applying for an order for substituted service or a dispensation of service in the circumstances when you do not know where your spouse is, and have been unable to serve your Application for Divorce and supporting documents upon him/her.
It is also advisable to attend if you are required to provide additional affidavit material to explain circumstances that may impact on the outcome of your matter, for example, where you and your spouse were:
- living separated under the same roof; or
- married for less than two years
At the Hearing, a Registrar of the Court will determine your Application for Divorce. The Registrar may wish to ask you questions about the information contained in your Application or about service of the Application.
If you and your spouse have children who are still under 18 years of ages, or, if there are any children who were treated as members of your family when you and your spouse separated, the Registrar may request further information about the children, for example:
- Who does each child currently live with? What time and communication does the child have with each parent?
- How are the parties financially supporting each child?
- How is each child’s state of health?
- How is each child progressing at school?
- Do you plan to make any changes to the current arrangements? If so, what are the details of the significant changes planned?
To grant an Application for Divorce, the Registrar must be satisfied that:
- The marriage is proved;
- All jurisdictional requirements are satisfied; and
- The ground for the Application for a Divorce Order – namely, that the marriage has broken down irretrievably, is proved.
Step 4 – Making of the Divorce Order
If the Registrar is satisfied that all requirements for a Divorce have been met, the Registrar will grant the Application for Divorce and a Divorce Order will be made.
The Divorce Order will take effect, and thereby terminate the marriage, one month and one day after the Hearing date.
If the Registrar is not satisfied that all requirements have been met, the Registrar may order one or both of the parties to amend the Application for Divorce, and/or provide further evidence to assist the Court before a Divorce Order can be made. Further Court dates may also be required before a Divorce Order is ultimately made.
When people separate, they usually need to sort out how to divide their assets (property) and debts. There are various ways this can be done:
- you and your former spouse can agree on how your property should be divided without any court involvement;
- if you agree on arrangements, you can seek to formalise your agreement by applying for consent orders in the Family Court; or
- if you cannot reach an agreement, you can apply to a court for financial orders, including orders relating to the division of property and payment of spousal maintenance.
Unless or until a Divorce Order is made, you can apply to the Court for Orders adjusting your matrimonial property interests at any time.
Once a Divorce Order is made, any application to the Court for property adjustment must be made within 12 months of your Divorce Order becoming final.
If you do not apply within this time limit, you will need special permission of a court. This is not always granted.
Effect of a Divorce Order on your Will
A Divorce Order that has taken effect may revoke, or otherwise affect the operation of your Will. We invite you to contact us to obtain legal advice about your position under the law of the State or Territory concerned.
We are highly experienced in all aspects of Divorce, including applying for and responding to an Application for Divorce. We are ready to provide you with advice and assistance at any stage of the divorce process.
If you would like assistance with applying for a Divorce, or responding to an Application for Divorce, we invite you to call our office on (07) 5532 3199 to make an appointment.