The breakdown of any relationship is stressful and saddening, but when legalities are involved the situation can become even more complicated. So, how do you go about getting a divorce in Australia and what do you need to know before you seek one?
When can I get divorced?
Due to its portrayal on television and film, people often believe that they can become divorced immediately after they separate, however, this is not the case.
In Australia, a couple must be separated for at least 12 months and one day before they can file an Application for Divorce.
If you and your spouse reconcile and then separate again, the date of separation for the Application is the date of your final separation. Therefore the 12-month separation period recommences from the date the final separation occurred.
You may continue to live with your spouse separately, under the one roof following your separation. If you lived under the one roof in the 12 months before you file your application, you will need to provide further information to the Court. If you file a sole application, you will need to file an affidavit along with an affidavit from an independent person. If you file a joint application, you should each file your own affidavits, if one of you is not able to, you need to file an affidavit from an independent person. The affidavit needs to show that there has been a change in the marriage showing you and your spouse have separated.
Once you file your application, it is usually 2-3 months before you receive the Divorce Order.
We have only been married for a short time. Does this change things?
If you have been married for less than 2 years and want to apply for a divorce you must either:
- Attend counselling with a family counsellor to discuss the possibility of reconciliation with your spouse; or
- If you have not attended counselling, seek the permission of the Court to apply for a Divorce.
Can I still get divorced if my spouse does not want to?
Yes. In order for grounds for divorce to be established, you will only need to be able to prove that your marriage has ‘irretrievably broken down’, which is shown by being separated for at least 12 months and one day. If you file a sole application, your spouse will be aware of the Hearing date when you serve the Application. They can file a response before the Hearing.
We were married overseas. Can we get divorced in Australia?
If you married overseas, you can apply for a divorce in Australia if either you or your spouse:
- Regard Australia as your home and intend to live indefinitely in Australia as an Australian citizen or resident; or
- Are an Australian citizen by birth or descent; or
- Are an Australian citizen by grant of an Australian citizenship; or
- Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
Will I need a copy of our marriage certificate?
Yes. If you do not have a copy you can obtain one by applying to the relevant state or territory Births, Deaths & Marriages registry.
If you were married overseas and your marriage certificate is not in English, you will need to file an English translation from a qualified translator and an affidavit from the translator.
What happens after the Application for Divorce is filed?
After you have filed your Application a hearing date will be allocated. The hearing will usually take place 4 to 8 weeks after the date you filed your Application. If it is a joint application you do not need to serve it on your spouse. If it is a sole application, you must serve it on your spouse. You may serve the Application by hand or by post. You cannot serve the documents yourself by hand and the server must be over 18 years. You should only serve the documents by post if you are certain your spouse will sign and return the Acknowledgment to you.
After the hearing, if the Application is granted (provided all the documentation and evidence provided is correct) you will be issued with a Divorce Order one month and one day after your hearing.
How are children dealt with?
You can formalise your parenting arrangements any time after you have separated. Prior to the divorce being granted, the Court will need to be satisfied that suitable arrangements have been made for children under the age of 18 years. These details must be set out on the Application.
How are assets dealt with?
You may apply for property orders to deal with property and other assets at any time after you separate until 12 months from the date of your Divorce Order (for married couples).
Do I need a lawyer?
You do not need a lawyer to file a divorce application. If you do require assistance, we recommend you speak to a family lawyer in Cairns.