Divorce in Australia refers to the formal and legal ending of a marriage. Australian Divorce Law is governed by the Marriage Act 1961 as well as the Family Law Act 1975. A Divorce can only be undertaken where there has been an ‘irretrievable breakdown’ of the marriage and there is no chance that you and your spouse will get back together.
To prove that the marriage has irretrievably broken down so that you can apply for a Divorce in Australia you will need to satisfy the Court that you and your spouse have separated on a permanent basis for at least 12 months. You may also count periods of separation where you and your spouse continued to reside in the same home, if you can satisfy the Court that you were actually separated even though you lived together.
At Alan Rigas Solicitors, our expert team of family lawyers can help to ensure that you are given the best possible options and avenues when it comes to divorce.
The Eligibility Criteria for Divorce
In order to apply for a divorce in Australia, you or your former spouse to the marriage must be either of the following:
● An Australian citizen (either by birth, by descent or by grant of citizenship); or● Lawfully living in Australia with the intention to continue living in Australia and considering Australia to be your permanent home; or● You have been living in Australia for at least the last 12 months prior to the application for divorce.
In addition to one of more the above, you must also be of the genuine belief that your marriage has ‘irretrievably broken down’ with no reasonable likelihood that you and your spouse will get back together. To demonstrate this to a court, you must be able to show that you and your spouse have been separated for 12 months prior to your application for divorce being filed with the court.
There is “no fault issue” to be determined when applying for a divorce in Australia.
Difference between Separation and Divorce
Despite common belief, separation and divorce are not the same with marriage separation in Australia referring to living apart from your spouse prior to divorce. While separation is generally done under different roofs, you may still be able to satisfy a Court that you have been living separately even though you have lived under the same roof.
If you and your partner have been married for less than two years, you must – in addition to the above – attend counselling sessions and obtain a certificate from your counsellor proving that they have discussed paths to reconciliation.
When Your Former Spouse Does Not Want a Divorce
In Australia, a divorce proceeding does not have to be undertaken with the consent of both parties which means you are able to file for divorce even if your spouse does not want one so long as you meet the above criteria.
In saying this, initiating a divorce proceeding does not need to be done jointly however the Court must be satisfied that the application has been served on the other party in accordance with the court’s rules.
Be Careful of Bigamy
In Australia, section 94(1) of the Marriage Act 1961 provides that:
“A person who is married shall not go through a form or ceremony of marriage with any person.”
In essence, this section of the Marriage Act provides that a person who has not gone through the correct divorce procedure in Australia cannot be legally married unless their current marriage is nullified.
The maximum penalty for bigamy is five years imprisonment. As a result, it is important to be sure of the marital status of you and your new partner before you marry.
How to Get a Divorce in Australia
1. Supporting Documents
Before filing for your divorce, it is important to make sure you have all necessary documents needed for your application for a divorce. These documents should include:
● Australian Marriage Certificate / Overseas Marriage Certificate;● Official translations of documents not in English;● ID Proof – Passport / Driver’s License;● Proof of Residence – Australian Visa grant letter / Australian Passport / Citizenship Certificate;● Counselling Certificate if married less than 2 years;● Application for Divorce;● Parenting Orders or Parenting Plans;● Property Orders;● Binding Financial Agreements .
If your marriage certificate is not in English, you will need to have it translated by a translator certified by the National Accreditation Authority for Translators and Interpreters (NAATI) as well as including an Affidavit for the Translation of a Marriage Certificate.
2. Preparing and Submitting your Online Application
Filling out your application for divorce can be done through the Commonwealth Courts website.
Once filled out and submitted, your application will be verified by the Court to ensure that it contains all necessary information such as relevant documents. If the Court finds any issues in the application, you will be contacts to rectify these issues before your application is accepted by the Court or the application proceeds further.
3. How Much is it to apply for a Divorce
To apply for a divorce, a fee of $940.00 (fee is subject to change) is payable to the Court but, depending on your circumstances and eligibility, this fee may be reduced to $310.00.
It is beneficial to seek advice to see if you qualify for the fee reduction.
4. Notify your ex-spouse
If you and your partner jointly made an application for divorce, there is no need to serve any documents to each other.
On the other hand, if you have made a sole application for divorce, you must serve these documents on your spouse either by post, by hand or through your spouse’s lawyer (should they be willing to accept documents on your spouse’s behalf).
If you have taken all reasonable steps to serve Court documents on your spouse but cannot find them, you may apply to the Court for an order that will either:
● Allow you to substitute service so that you may serve the documents on a third party who has the ability to deliver the documents to your spouse, or● Dispense service which will allow you to waive the requirement of service all together.
If your spouse is in Australia, the documents must be served at least 28 days before the divorce hearing date.
If your spouse is overseas, the documents must be served at least 42 days before the divorce hearing date.
5. Check if you need to go to court
You must attend Court for your divorce hearing if:
● You made the application for divorce on your own; and/or● If you and your spouse have children under the age of 18 at the time you filed for a divorce application
If you and your spouse file an application for divorce together – referred to as a joint application – you will not be required to attend Court unless you select to attend.
Divorce: Who Gets What in Australia?
It is important to note that while the breakdown of a marriage can involve the division of assets including property and the parenting arrangements for children, these matters of property and children are dealt with separately to the actual divorce application and divorce process.
When it comes to divorce with children, a Court will always consider the best interests of the children before making any orders. In the event there are children under 18 involved in your relationship, the Court will only grant your application if it is satisfied that you and your spouse have made sufficient arrangements for all children under the age of 18.
If both parties cannot come to an agreement as to the best interests of the child(ren), family mediators will be appointed to facilitate discussions and to make an agreement between parents.
If the parents are still unable to come to an agreement or compromise, a judge will decide on behalf of the child(ren), acting in the best interests of the child(ren).
Further it should be noted that arrangements for the division of relationship property between you and your spouse must be made no later than 12 months after your divorce has been finalised (or 24 months following the end of a de facto relationship). If you do not commence an application within 12 months from the date of divorce, you will need to get the Court’s approval to file the application out of time.
After a Court has granted you a divorce, it will be finalised one month and one day after the grant.
During this one month and one day period, your marital status will not have been amended and as a result it’s important to wait until your divorce has been finalised prior to doing anything that would affect your marital status such as remarrying.
The material included in this article is designed and intended to provide general information in summary on Divorce in Australia, which is current at the time of publication, for general informational purposes only. The material may not apply to all jurisdictions.
This article does not constitute legal advice. This article is not intended to be a substitute for legal advice you obtain from a lawyer and as such, you should not rely upon this article as legal advice or a substitute for legal advice.
Undergoing a divorce proceeding is a sensitive matter and can be overwhelming and divorce law in Australia can be complicated in some cases. Contacting an experienced solicitor as soon as you receive a Divorce application or when you are contemplating commencing a Divorce will provide you with the assistance and guidance you need to meet the legal requirements of preparing for or dealing with a divorce.
Contact our office to speak with one of our lawyers who can help guide you through the divorce process in Australia and assist you to with divorce proceedings.
How to get a divorce in Australia
To get divorced in Australia you will need to:
● Demonstrate that you have been separated for a continuous period of 12 months; ● Gather your documents including your marriage certificate;● Prepare and submit the Divorce application;● Seek property and parenting orders if applicable;● Serve the Divorce application on your spouse if the application is not a joint application;● Appear at Court if required;● Once the divorce is granted wait one month and one day for the Divorce to take full effect.
What happens after I file for Divorce
The Court will assess if your application is a valid application and or if there is a need for further documents to be filed.
You will then need to serve the application on the other party if it is not a joint application.
If you cant locate the other party you will need to obtain an order for substituted service.
The Court will notify you of the hearing date.
You attend Court for the hearing unless it is a joint application and/or your presence is not required by the court.
After a Court has granted you a divorce, it will be finalised one month and one day after the grant.
You can then download a copy of your Divorce Order by accessing the Online Commonwealth Court’s portal.
How much does it cost to get a Divorce
Aside from legal fees you may incur, the Court charges a $940.00 filing fee for your divorce application which may be reduced depending on your circumstances and eligibility.
How long does it take to get a Divorce
The finalisation of the divorce application will depend on the complexity of your matter. However it is important to understand that until you have been separated for at least 12 months you will not be able to file for divorce.
Additionally if you have been married for less than two years you will need to attend counselling prior to the divorce application being made.
In addition to the above, it will take around 4 months from filing your application to having it heard by the court.
Do I need to pay a Lawyer for my Divorce
Although you are able to file for divorce on your own, seeking legal advice and assistance from a qualified and experienced divorce lawyer will ensure that you get the best possible outcome from what is for many a difficult and stressful situation.
How to get a quick Divorce
In Australia, the process of divorce cannot be sped up or made instant. The relevant laws and timelines must be followed by parties seeking to divorce which includes a 12 month period of continuous separation prior to filing for divorce.
How to get a Divorce if spouse won’t sign
A Court is still able to grant a divorce order even if your spouse cannot be located, refuses to accept service of the application or refuses to apply with you for the divorce.
To do this, you must ensure that your spouse was served correctly and according to the necessary rules of service.
If you cant serve your spouse, an order for substituted service can be sought from the Court.
This order for substituted service will be made where you can satisfy the Court that you have attempted to serve the divorce application, but you cannot locate your spouse.
Further you will need to satisfy the Court that if the divorce application is served on another person that this person will be able to reach your spouse and your spouse will become aware of your application for divorce and the date of the applications hearing.