There are many reasons people decide to officially end their marriage by applying for a divorce. These may include the desire to marry someone else, which can’t be done without a divorce, and because their rights and responsibilities in terms of financial matters such as wills are different depending on whether they’re divorced or not.
The only legal requirement for getting a divorce is proof that there has been an ‘irretrievable breakdown’ of the marriage that has caused the husband and wife to be separated for 12 months, with no likelihood of getting back together. It should be noted you can remain living together in the same home and still be considered ‘separated’ for the purposes of a divorce application, though in some cases evidence may be required to prove you and your ex are genuinely ‘apart’.
What are the next steps once you’ve decided on divorce?
Apart from separation from each other for 12 months you also need to satisfy a couple of other criteria to proceed with a divorce:
- Be an Australian citizen;
- live in Australia and consider it your permanent home; or
- normally live in Australia and have lived here for at least 12 months before applying for a divorce.
If you and your ex-spouse agree to divorce, you can then make a joint application to do so. But if one party does not agree to divorce, you can still apply as a sole applicant with your spouse as the respondent.
You can also apply for a divorce if you were married overseas, or if you don’t know where your partner is, as long as you live in Australia. Legal advice is recommended if you’re unsure of the status of a marriage made overseas.
If there are children from the relationship, certain details regarding them will need to be settled before a divorce application can proceed, including where they will live; how they will be financially supported; their health and education; and how they’ll continue to maintain a relationship with both parents and other important people in their lives.
It’s worth noting that if you’ve been married for less than two years, you can get divorced only if you and your partner agree to counsel, or under special circumstances. If your partner refuses to counsel, you can still get divorced but seek legal advice in this circumstance.
What’s the actual process?
To apply for a divorce, you must complete an Application for Divorce form, file it with the court and pay the application fee. You may be able to apply for a reduced fee if you hold a government concession card or can prove you’re experiencing financial hardship. A court filing fee for a divorce application with the Federal Circuit Court is currently $910.
These days you can also apply for a divorce online through the Federal Circuit Court but will first need to register to gain access to the Commonwealth Courts Portal. Relevant documents in support of your application can be filed through the portal.
If you’re making a joint or sole application for divorce where there are no children under 18 involved, then you don’t have to go to court. But if you make a sole application and there are children who were under 18 years before the separation, then you’ll have to go to court unless there are special circumstances.
Once at court, if the Judicial Registrar is satisfied that proper arrangements have been made for any children from the relationship, then a court order will be made. This is a short-term order which only becomes final a month and a day after it’s made unless there’s a compelling, intervening reason why the court shouldn’t grant the divorce in that time.
If you intend to file for Divorce prior to finalizing your financial relationship with your former spouse, you will need to keep in mind that you have twelve months from the date the Divorce Order is made (i.e. one month and one day after the actual hearing) in order to apply to the Court for a property settlement. If you miss this deadline, you need to seek urgent legal advice.
Disputing a divorce
If you don’t want a divorce to be granted, you must provide documents to the court and appear at the hearing to explain why you want the application dismissed. If you want the divorce granted, but disagree with the facts in the divorce application (such as certain details about the children), you’ll need to file paperwork with the court and attend the divorce hearing to explain. Legal guidance is strongly recommended in either of these situations.
It can take several months or more from the time an application for divorce is filed to the actual date of divorce. If you are planning to get remarried, you’ll have to wait until the divorce order is finalised as it’s an offence to marry another person if you are already married.
Obviously, there are numerous issues involved in applying for divorce, from required timeframes for separation to issues where children are involved and implications for estate planning. Consulting a law firm with specialist family law experience such as Big Law is the surest way to ensure a smooth path through divorce proceedings, securing your peace of mind and your ability to move forward with your life. Contact us today on 07 3112 7998 or [email protected]