Why you need the best Divorce Lawyers
Separation can significantly change your circumstances.
Our divorce lawyers are committed to providing personalised representation that achieves the best outcome for you.
We have a team of friendly divorce lawyers to 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.
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Family Lawyers To Assist You Through Your Matter
Justice Family Lawyers prides itself on connecting with our clients on a personal level whilst providing professional and sensible advice. Our focus is getting you the outcome you want quickly and in a cost efficent manner so that you can move on with your life.
What is the difference between divorce and separation
The difference between divorce and separation is that a divorce is the formal process of undoing a marriage, whereas separation is when you consider your relationship to be over with your partner.
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.
How to apply for a divorce in Australia
To apply for divorce in Australia, you must be eligible to do so.
Here is the eligibility for you if you want to apply for a divorce in Australia:
- Either you or your partner needs to be an Australian citizen, be ordinarily living in Australia for at least the past 12 months, or regard Australia as your home with the intention of living in Australia indefinitely.
- You must be able to satisfy the court that you and your spouse have been separated for at least 12 months. There must be no reasonable likelihood that you and your spouse will get back together.
- It is also important that you have your marriage certificate. If you are married in another country and your marriage certificate is not in English, you will need to have it translated. If you fulfill these requirements, you can then apply for divorce.
You and your spouse do not have to make the divorce application together. You can make a sole application or a joint application. The divorce application comprises a form to fill out and then lodge with the court. The application should be lodged online via the Commonwealth Courts Portal. Depending on your own circumstances, you may need to file additional documents, such as affidavits, to support your divorce application.
Applying for divorce carries a filing fee of $900, although you may be eligible for a reduced filing fee. If you are making a sole application, you will need to notify your spouse that you have applied for divorce. This is called serving the application for divorce on your spouse. Court attendance is compulsory if you made a sole application and have children under 18. If you made a joint application, you do not have to attend court. The court may grant your divorce, dismiss your application or adjourn the case if they require further information. When the court grants
your divorce, it will become final one month and one day after the court makes the order.
Apply for a divorce online
You can apply for a divorce online through the Commonwealth Courts Portal at www.comcourts.gov.au.
The application for divorce online interactive form can be filled in when you are logged into your account in the portal. You can make either a sole or joint application. The form is composed of Parts A to F. As you complete the application, save each part when you finish it. You will see a green tick when you successfully complete each part. When you apply for divorce online, you need to upload required documents, such as your marriage certificate, and you may also need to upload additional documents. An example of an additional document is an affidavit declaring that you and your spouse have been living separately and apart for over 12 months despite living in the same house.
Once you have completed the form and uploaded the documents, you must print and sign the Affidavit for eFiling Application (Divorce). Although this is an online divorce application, it is still necessary to sign this affidavit by hand in the presence of an authorized witness before uploading the signed document to your application. You also need to print the brochure titled Marriage, Families and Separation.
At the end of your online divorce application, you must pay the filing fee. It is currently $940, although you may be eligible for a reduced filing fee. If it is a joint application, you are not required to attend court. A divorce order will be available to download from the Commonwealth Courts Portal once your divorce is finalised. Although they can access Australia’s divorce system, same-sex couples currently cannot apply for a divorce online. If you cannot eFile, contact the National Enquiry Centre to receive the divorce application forms. Even if you do not file online, you must create a Commonwealth Courts Portal account to receive your divorce order as these are no longer sent by post.
Learn what steps you can take next
You may put together your own divorce application, or alternatively, you can ask your divorce lawyers 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. In the event 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. You may be confused about whether or not you need to attend your divorce hearing. Speak to a specialist divorce lawyer.
You may want to know, can i divorce without a lawyer? Yes, you could, but considering it could be the largest emotional and financial process of your life, you might be better guided by a team of experts.
Serving your divorce 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.
Do you need divorce lawyers for your divorce application?
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.
The courts consider that many people may be separated and living 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 or your divorce lawyers 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.
You are now unmarried and your divorce has been finalised. Please ensure that you are aware that your divorce does not cover the arrangements for your children or your finances.
How long does it take to get a divorce in Australia?
If you want to know how long it takes to get a divorce in Australia, the answer is it takes about four months to get a divorce in Australia.
This means four months from the date of filing the divorce application until you receive the divorce order, one month and one day after the court grants the divorce. When you receive the divorce order, this means the divorce is final and you or your spouse can legally remarry.
However, before you apply for a divorce, you must be separated from your spouse for at least 12 months. Once this period of separation has passed, you are eligible to apply for divorce. At the court hearing for your divorce, the court can either dismiss the application, adjourn the case if they require more information or grant the divorce.
The divorce process goes fastest when the court grants the divorce on the day.
Circumstances in which the court may adjourn the case and therefore postpone the finalisation of the divorce include:
- If they are not satisfied with certain affidavits you may have lodged with the application
- If they require further evidence from you, your spouse or other people
- There has been an issue with service of the divorce application
- The divorce application has not been completed correctly
- You are not eligible for a divorce
The court must also be satisfied that appropriate arrangements have been made for your children, if any, before they can grant the divorce.
This is especially relevant to sole applications. You can apply for a divorce by yourself in a sole application
or with your spouse in a joint application. Joint applications may not take as long as sole applications because the latter require service.
Serving the divorce application on your spouse is when you formally notify them that you have applied for a divorce,
and they sign an acknowledgment of service to show that they have received it. This does not necessarily take any longer than a joint application, provided the respondent does not delay returning the acknowledgment of service.
Do I need Divorce Lawyers if I am attending mediation?
Mediation is a form of dispute resolution. It involves a neutral, independent third party, called a mediator, who helps two people in conflict with each other reach an agreement.
The mediator is there to facilitate communication and understanding and to help each party work out what is best for them. The mediator helps the parties negotiate.
You may be wondering if you need divorce lawyers in order to go to mediation.
You actually do not need a divorce lawyer to attend mediation. However, if you would like to attend with your divorce lawyers, you will be able to do so.
Mediation is much less formal than court proceedings and does not take as much time. It is also far cheaper and usually more successful. Spouses in conflict with each other can choose to participate in mediation rather than start a court case.
They can use mediation to help resolve disputes about finance, property, parenting and families. However, if one or both decide to make a court application, they may have to take part in compulsory family dispute resolution before the case can begin.
Family dispute resolution is another term for mediation. In 2006, new family law legislation made family dispute resolution compulsory for couples in conflict over parenting issues. They must each make a genuine effort to come to an agreement. Only if this is unsuccessful and no agreement can be reached will the couple be permitted to commence a court case.
As a mediator, the family dispute resolution practitioner helps both people discuss issues, think about different options and come to a mutually acceptable agreement about their parenting arrangements.
The family dispute resolution practitioner does not offer legal advice but helps explore options while keeping a focus on the best interests of the child. Decisions made in family dispute resolution are not legally binding on their own.
If two spouses come to an agreement, they can formalise this agreement by filing for consent orders.
The Family Law Act 1975 has established a ‘no-fault divorce’ system in Australia.
This means that you do not need to explain to a court or to any governing body why you want to be divorced.
If you want to file an Application, you must prove that you have been separated for a period of no less than 12 months and that you 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.