How to divorce
A little intro on divorce
In Australia, married couples can only divorce if their marriage has ‘irretrievably broken down’. This just means that when one person, or both people, in the marriage decide they don’t wish to continue to be married, you separate for 12 months, and then apply for a divorce.
The causes of a marriage breakdown play no role in divorce proceedings. There is no attempt to decide who is to blame. That’s why people often describe divorce in Australia as “no fault divorce”.
Instead, the sole test of a marriage breakdown is that the couple has been continually separated for 12 months.
This has been the law since 1975 when the Family Law Act totally changed divorce in Australia. Before this, a couple could only get divorced if one partner could be blamed for the marriage breaking down. Needing reasons like “he was unfaithful” or “she deserted the kids” are long gone.
Seeking legal advice
You can obtain legal advice to understand your rights and responsibilities before applying for a divorce or other applications in relation to a divorce. A lawyer can help explain how the law applies to your case. They will cost around $300-400 per hour.
If you don’t have money to afford a lawyer you can make an appointment to visit a free one at your local Community Legal Centre.
Low cost alternatives
If you would prefer to avoid the crowds at a community legal centre and have a chat on the phone with the Legal Eagle’s low cost legal team of super friendly lawyers, you can book an appointment HERE
How do I get a divorce?
Firstly, you must be separated from your husband (or wife) for at least 12 months.
[If you get back together again and stay together for for MORE than three months then the separation 12 month period starts again.
Plus you must also:
♦ Consider Australia your home and intend to live here indefinitely
♦ Be an Australian citizen by birth, descent (Australian parents) or you’ve been granted Australian citizenship
♦ Ordinarily live in Australia, and have done so for 12 months immediately before filing for divorce.
So if you fit into the above circumstances, as long as you’ve been separated for twelve months, you’re entitled to apply for divorce.
And don’t forget you can file for divorce on your own, even if your spouse doesn’t agree to it, whether it’s for religious, cultural or any other reason.
From the time you file your Application for Divorce (see below), to the time the final divorce order is made is usually about 3 months. But this depends on each individual application.
Married less than 2 years?
If you have been married less than two years and 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 OR
♦ If you don’t attend counselling, seek permission of the Court to apply for a divorce. You would do this by starting an Initiating Application with the Federal Circuit Court and providing an affidavit to explain to the court what happened with your short marriage.
The two years is calculated from the date of the marriage to the date of applying to the Court for a divorce. And don’t forget that you and your spouse must also be separated for at least 12 months before applying for a divorce.
For example, if you restart your relationship and then separate again after less than three months back together, only the time separated is counted. But here’s the catch, if you restart your relationship and don’t separate again until AFTER 3 months of reconciliation… then the 12 month separation clock must start again.
The Divorce Application
The Federal Circuit Court (think of this court as like a sister court to the Family Court except that it deals with shorter and simpler matters) has produced an Application for Divorce Kit which guides you through the steps you need to take to file for your divorce.
The kit includes an application for divorce which you can print out and fill in with your details and gives instructions on where to mail or drop the application in. Don’t forget that you will need to provide a copy of your marriage certificate with your application and have the affidavit in your divorce application (a statement agreeing that your online divorce application is true) witnessed by a Justice of the Peace or a lawyer.
In today’s switched on world almost all divorce applications are filed online via www.comcourts.gov.au. The application will probably take around 45 minutes to fill in and check. Once again, you will need a copy of your marriage certificate so it can be scanned and added to the application as an attachment. You will also need to add to the application your affidavit which must be signed by a lawyer or Justice of the Peace and then scanned and added to your online application.
Unfortunately, couples who have been married less than 2 years cannot use this method and must provide evidence that you have visited a marriage counsellor before you file. You can find out more about what you early quitters need to do HERE
Service is the process of delivering or posting documents to a party after the docs have been filed with the court. It’s all about ensuring that the other party parties has a copy of any documents that were given to the court. If you have made a joint application, you do not need to serve your spouse with any documents.
If you have made a sole application you must serve the following documents on your spouse: a sealed copy of the Application For Divorce (a sealed copy is a copy of a document which has an original court seal stamped on it); a copy of the Marriage, Families and Separation brochure; and any other documents filed with the court, except the copy of your marriage certificate.
The documents must be served on your soon to be ex at least 28 days before the court hearing.
[If your spouse is overseas they must be served on them 42 days before the hearing.]
The court takes these time frames very seriously, so even 1 or 2 days over the correct time could muck up your service and delay your court hearing.
Here’s a short video all about serving divorce papers:
There is a fee to file your application and it should be the only court fee relating to your divorce. There is also a reduced fee, if you are eligible.
Here is information on the current Federal Circuit Court fees.
And for those in WA, here are your divorce application fees.
♦ If there is no child of the marriage currently under 18, you are not required to attend the hearing. This applies for both sole and joint applications.
Court – It ain’t as dreary as it looks (circa 1932)
♦ If you make a joint application and there is a child of the marriage currently under 18, neither you nor your spouse are required to attend the hearing. However, it’s considered important to have worked out proper arrangements for the care and welfare of your kids, as the divorce order will only take place when the court is satisfied that this has been done.
One way this can be done is through having a parenting plan which should be prepared at the time you’re both separating.
♦ If you make a sole application and there is a child of the marriage currently under 18, you must attend the hearing. In certain circumstances, you can apply to the Court in writing to appear by telephone.
Arrangements for children, maintenance and shared property
The granting of a divorce does not decide issues about property, maintenance or parenting arrangements for your children.
If you want to make arrangements about these issues you can:
◊ make an agreement with your spouse and file it with the Court, or
◊ seek orders from the Court, where you and your spouse cannot reach an agreement.
And don’t forget it’s important to advise all relevant government agencies (eg Centrelink) of any separation as this could be relevant to social security and child support purposes.
For more information on this check out the The Legal Eagle’s easy to follow guides to: