We are always receiving enquiries about divorce – the process, the timelines, how much it costs, what will happen with property and with children…
Divorce and other family law matters, including arrangements about parenting and negotiating a property settlement, are interrelated matters on the one hand, but still separate matters in the eyes of the law.
Divorce – Definition
Divorce is the process by which married couples ‘end’ their marriage. Note this process is (of course) equally applicable to same-sex marriages.
Getting a divorce, therefore, does not mean your parenting arrangements are sorted, nor is your property settlement finalised.
By becoming divorced, what you have achieved is quite confined – you have ended your marriage and are free, if you so choose, to marry again.
In Australia, the rules around marriage and divorce are made by the Federal government, pursuant to the Constitution – section 51 (xxi) for marriage and section 51 (xxii) for divorce and matrimonial causes and parental rights, custody and guardianship of children.
Section 51 of the Constitution is accessible here: http://classic.austlii.edu.au/au/legis/cth/consol_act/coaca430/s51.html
How To Get A Divorce In Australia– the Basics
To be eligible for divorce in Australia, the applicant or the respondent must:
- Be born in Australia or be a citizen by descent
- Be a citizen
- Be lawfully present in Australia and living in Australia for at least the last 12 months, intending to continue to live here (passport proof of arrival required and current visa)
In terms of the relationship:
- The parties must have been separated for at least 1 year and 1 day (sometimes you can be ‘separated’ while still living in the same home – this can sometimes be a complicated question to determine)
- The marriage must have broken down with no prospect of reconciliation or getting back together
- The original marriage certificate, even if married overseas (formal translation required if in another language), must be provided.
- The parties have been married less than 2 years
- Separation time has not been long enough to apply for divorce
- One of the parties’ locations is not known (problems with service)
- The parties were married overseas and the location of the formal marriage certificate is unknown
If any of the above issues may apply to you, please do not hesitate to contact our family divorce lawyers for further advice.
What is the Divorce Process In Australia?
The process around divorce can be cumbersome and confusing.
You must make an application to the Federal Circuit Court of Australia if you wish to end your marriage and divorce. Upon a successful application being filed, the Court will allocate a date for the divorce hearing before a Registrar of the Court.
The party who is applying for the divorce is known as the applicant
The other spouse party is known as the respondent.
The current fee for filing a application for divorce in Australia is $930.00 (full fee). Applicants who are concession card holders (for example, a Health Care Card) or can demonstrate financial hardship (e.g. little bank savings, no significant assets, low paying employment, etc.), maybe entitled to a reduced application fee of $310.00.
Joint applications may be made to the Court where the parties have agreed to jointly complete the application. Joint applications can be much quicker to finalise, as well as cost-saving. This is because an applicant who files for divorce with the Court must prove to the Court that the other party to the marriage has been served with a copy of the application.
The usual process for service is to employ a process server, who is an independent professional person who, for a fee (usually $100 – $150) personally meets the respondent and ‘serves’ (gives) the documents to them. As part of this work, the process server completes an ‘affidavit of service’ which is another court document that is filed with the court and which acts as proof to the court, that the other party knows about the application being filed, and has all the relevant information about the application.
Service by Post
Alternatively, divorce applications can be served by post. However, for the court to accept this type of service, the respondent must return to the applicant the acknowledgement of service document, which is a sworn document (sworn documents, or affidavits, are solemnly sworn or affirmed documents for which a person must promise to tell the truth – any failure to tell the truth on such a sworn document may be punishable as perjury with penalties including imprisonment).
After receiving the acknowledgement of service document, the applicant must file an affidavit of service, stating that they recognise the signature on the acknowledgement document.
Service by post can be problematic if the relationship between the parties is strained, and if it is not known whether the respondent will be prepared to complete the acknowledgement document and return it. Delays are often experienced in this way.
Importantly, applicants have limited time in which to serve the divorce application after it is filed. The Respondent must be served at least 28 days before the scheduled divorce hearing
Joint Applications – benefits
With joint applications, there is no separate and additional requirement for an applicant to file an affidavit of service evidencing that the divorce application has been ‘served’ as there is no ‘other party’ where both parties are the applicants.
The Divorce Application Document
An application for divorce in Australia requires full details for each party including personal information (name, age, contact details, employment, citizenship), details about the relationship (including the first date the parties cohabitated, the date of marriage, and the date of separation) and information regarding any periods of reconciliation that may have occurred during periods of separation.
Parties must list details for any children under the age of 18.
Other court cases (parenting applications, property settlement applications, intervention orders, parenting plans, child welfare issues, and child support matters) must also be declared.
The Application Process
In order to file an application for divorce, you will need to be separated from your partner for at least 12 months.
If you have been married for less than 2 years, there are additional requirements to attend counselling before filing a divorce application, or alternatively leave (permission) must be given by the court to make the application without counselling.
There are fees for filing a divorce application which may be reduced if you have a health care card.
A Divorce application is made electronically through the Commonwealth Courts ‘Portal’.
Prompt Legal Services are very experienced in divorce applications and regularly assist clients in this process, ensuring accurate and efficient applications and a minimum of fuss.
What does it mean to get a Divorce?
Divorce is the process that ends the formal marriage between two people. Receiving a divorce order allows for a party to re-marry.
People sometimes say they need assistance with “their divorce”, when they primarily want assistance in relation to separating their assets. It is important to know that getting a divorce will not achieve a property settlement or automatically result in an arrangement for any children of the marriage.
Do I need agreement from my spouse, to divorce?
No, a single party may file for divorce. Sometimes, you may need to utilise the services of a process-server, where the other party does not return required documentation.
Divorce applications are frequently made by one applicant only. They are also able to be applied for jointly. For joint applications, the parties will avoid potential process server fees.
Are you ‘separated’?
‘Separated’ can mean still living under the ‘one roof’, however certain requirements must be met in this instance, including additional affidavit evidence from third parties known to you who can confirm that you are separated.
We are experienced family divorce lawyers and can take you through the process quickly and efficiently in finalising divorce applications.
To begin your divorce application, we will require your original marriage certificate, as well as 100 points of identification. If you do not have your marriage certificate, this may be obtained through Births, Deaths and Marriages.
Do I have to go to court?
If you are the applicant, and there are children of the marriage, you will need to go to court. If you prefer, we can attend court on your behalf.
How long will it take?
Most divorce applications receive hearing dates of 1-2 months from date of filing.
Following the hearing of your divorce application, provided the requirements for the divorce have been met, you will be issued with a divorce order after one month and one day.
What happens next?
It is important to know that getting a divorce can have implications for the validity of wills and for certain types of assets such as superannuation.
In order to avoid “intestacy” (dying without a valid will) or losing superannuation assets to an estranged (separated) spouse in the event of your death, you must follow certain requirements for your will and in relation to your superannuation holdings.
Being the best family divorce lawyers we are able to assist you in ensuring your superannuation is protected and your assets are distributed to your beneficiaries pursuant to your intentions, after you have divorced.
If you currently hold your original marriage certificate, applications to the court can be made quickly.
Please call our office on (03) 9334 2370, to arrange an appointment if you have any questions about divorce.
Please note – information given above is ‘general in nature’ only and you should seek legal advice in relation to your particular circumstances before acting.