Divorce in Australia
Divorce is the formal process to legally end a marriage. It has the same process in all states and territories of Australia.
The Family Law Act 1975 has established a ‘no-fault divorce’ system in Australian.
This means that you do not need to explain to a court or to any governing body why you want to be divorced.
To file an Application you must:
- prove that you have been separated for a period of no less than 12 months
- have been married for more than 2 years OR have been married for less than 2 years but have attended the required counselling with the Family Court
Divorces are not handled by the Family Court of Australia, rather, they are heard in the Federal Circuit Court of Australia, which handles these cases in Australia under Part VI of the Family Law Act 1975.
Divorce and Separation
While there is no need to officially register a separation, it is important to take note of the date of separation for your divorce application (if you were married) and if you want a formal legal settlement of your finances.
The only thing you need to explain is that your marriage has broken down and there is no reasonable likelihood that the parties will get back together.
It is important to remember that being divorced does not determine how property is distributed between you and your ex, or how child custody will be arranged for your children. It is a legal document that proves that you are no longer married.
The Family Law Act mean that separating de facto couples (including those in a same-sex relationship) generally enjoy the same rights as married couples in regards to property and financial settlements (excluding Western Australia). However, certain criteria relating to the existence of a de facto relationship must first be proved to cause the law to apply.
Separated de facto couples have a 2-year window from the date of separation in which to initiate legal proceedings to resolve property and financial issues following relationship breakdown.
You may put together your own divorce application, or alternatively, you can ask a lawyer to do it for you.
If the divorce application is made by you as a sole applicant you have to serve a copy of the application on your former spouse.
You will need to complete and file an Affidavit of Service with the court. The affidavit will be a sworn statement that will be used as evidence to the court that the application has been served and received by the other party.
Your ex-spouse may then file a Response to Divorce if they disagree with the information provided on the application or if they oppose the divorce on the basis that the parties have not been separated for 12 months or if the court does not have jurisdiction
If your ex-spouse does not oppose the divorce, then they will not have to attend the hearing.
If you do not have children (under 18) and have filed the Affidavit of Service proving that the application has been served on the other side, you will not have to attend the divorce hearing.
If you are confused about whether or not you need to attend your divorce hearing, please contact a specialist divorce lawyer.
Serving your application
If you are having difficulty serving the divorce application because you do not know the whereabouts of your ex-spouse, you can apply to the court through your divorce lawyer for an order for substituted service or an order for the dispensation of service.
Substituted service allows you to serve the divorce application electronically by email or through Facebook. It may also allow you to serve the application on your ex-spouses work address or a relative’s address.
The dispensation of service means that a divorce will be granted without the other party being served with the divorce application meaning that they will not be aware that the divorce hearing is taking place. You will need to present extenuating circumstances showing that this is necessary for your situation.
If you were married overseas and now live in Australia, you can still apply for divorce in Australia. You need to include your marriage certificate and if it is not in English you will need to contain a certified English translation of the marriage certificate.
What is the Divorce Process?
The divorce process can be broken down into 4 steps:
1. Separation. Time – 1 year.
Separation occurs when one or both parties to a marriage decides that they no longer want to be married and communicate this to the other party.
Separation may occur from the action or conduct of one of the parties, or it can be something that can be done in writing. It is important to note that the word “separation” does not mean physical separation, but simply the breakdown of a relationship.
It is possible to be separated under the same roof in certain circumstances.
Just because one party leaves the home, doesn’t mean that they are separated. In the more recent case of Campbell and Cade (2012) the court found that even after the husband left the home, the couple were still not separated. This was because they continued to maintain sexual relationships, attended social functions together and had their finances still managed together
2. Application for Divorce. Time – 6 weeks.
After being separated for one year, you will be ready to file your application for divorce. For a step by step breakdown of how to do this, check out our detailed page HERE.
You will need to attach a copy of your Marriage Certificate to the application for divorce.
The application will need to be served on the respondent spouse at least 28 days before the divorce hearing. If the Respondent is overseas, they will need to be served 42 days before the divorce hearing.
3. Divorce Hearing. Time – 30 days.
You may be required to attend court on the day of your divorce hearing. This is a day that the court has allocated to you to hear your matter.
Your divorce has now been finalised and you are legally now recognised as being single. Please ensure that you are aware that your divorce does not cover the arrangements for your children or your finances.
Separation can significantly change your circumstances.
Talking to experienced family lawyers upon separation can help ease your mind and allow you to understand your legal rights and plan your future arrangements.
At Justice Family Lawyers our divorce lawyers are committed to providing personalised representation that achieves the best outcome for you.
Our team of friendly divorce experts assist you to understand your situation and help you to reach a fair outcome so you can get on with your new life.
We focus on settling disputes in an efficient and affordable way but if your matter must proceed to court then you will have strong representation from beginning to end.