Divorce. You never expected to be here.
It may have been your decision or it may not have been, but one thing is for sure; not a single wedding preparation list includes “get separated” or “get divorced”.
The reality is though, marriages do end and for a variety of reasons, but it’s not that you both “failed” at marriage. Even if that’s how you see it, perhaps you can take solace from the fact that you’re in good company with one in three marriages ending in divorce in Australia. That means one in three of your friends, family and extended network will, on average, already be divorced or will find themselves in this position in time.
The notion of “getting divorced” is one that is all-encompassing in our everyday language and it could include a list of things to think about like:
- organising parenting arrangements for the children;
- untangling financial resources, assets and property, and getting your share;
- changing your name or the children’s names; or
- being able to remarry.
While these are absolutely all part of the process of getting a divorce, they are very unique elements of family law, whereas a divorce is, in fact, the legal termination of a marriage.
In Australia, the law operates on the principle of no-fault divorce, meaning that the court does not take into consideration why the marriage ended.
You will, however, need to satisfy the court that the marriage has irretrievably broken down. This is done by demonstrating that you and your spouse have been separated for at least 12 months before applying for a divorce.
To be able to apply for divorce in Australia, either you or your former partner also need to:
- be an Australian citizen by birth, descent or grant of Australian citizenship; or
- regard Australia as your home and intend to live in Australia indefinitely; or
- ordinarily live in Australia and have done so for 12 months immediately prior to applying for divorce.
There is also special consideration given to things like:
- the length of the marriage; if it is less than two years you must undertake counselling and obtain a certificate from a relationship counsellor that states you have considered trying to reconcile;
- care arrangements for children under the age of 18; and
- consent of both parties to the divorce.
Choose the path that describes your situation for more information.
There are two ways to apply for a divorce; a joint application made by both parties or a sole application made by one party. If your spouse doesn’t agree to the divorce, you can make a sole application.
A sole application for divorce means that only one you is making an application for divorce. If you make a sole application, it will need to be personally served on your former partner and, if there are children under 18 years old, you will need to attend the court hearing.
A joint application for divorce means that you and your spouse mutually agree to get a divorce. If you do not have children under 18 years there is no requirement for either of you to attend court.
It is possible to get a divorce while you still live in the same house. This is referred to as “separation under one roof” and you will need to provide the court with evidence of things like:
- a change in sleeping arrangements;
- a reduction in shared activities;
- a decline in shared household duties;
- the dividing of shared financial accounts;
- notifications made to government departments or institutions; or
- telling your family and friends about your separation.
In order to apply for a divorce you will need:
- your government-issued marriage certificate, or a translated copy if you were married overseas and it is not in English;
- contact details for your spouse or their solicitor;
- any concession card (such as a Health Care Card or Pensioner’s Concession Card) which will enable you to apply for a reduction in the court’s filing fee.
Preparing an application for divorce is usually pretty straight forward, especially if you meet all of the criteria mentioned above. Once your application for divorce is filed with the court, you will be allocated a hearing date and then your divorce order will be issued one month and one day later if it is granted by the court.
Should I get a divorce before or after organising parenting arrangements and our financial settlement?
The wellbeing of your children and security of your financial resources are the most important things to think about at this time. For that reason, if you haven’t already seen a divorce lawyer, it is advisable that you seek advice on how to deal with those aspects of your separation, and what timing may be appropriate for your situation, before getting formally divorced.
It is also critical to note that there are time limitation periods imposed under the Family Law Act if you find yourself in a position of needing to apply to the court for a property settlement, failing negotiation or mediation as options.
For married couples, this time limit is 12 months after the date of your divorce order. If you miss this time limit and then seek for the court to make property orders, you are only able to proceed if the court specifically allows you to proceed “out of time”. This is not guaranteed and our advice is always to make an application within the 12 month timeframe or prior to seeking a formal divorce.
Same sex couples whose marriages are recognised in Australia can access divorce in the same way as heterosexual couples, regardless of when the marriage was celebrated. This includes couples married overseas before 9 December 2017. If you were married on or after 9 December 2017 the restrictions around counselling will also apply.
The Court plays a role in all divorces, but depending on your circumstances the level of involvement may vary significantly.
If you are making an application for divorce and the parties to the marriage have no children under the age of 18, you do not have to attend the Court hearing. Or if you are making a joint application for divorce, and the parties to the marriage have a child or children under the age of 18, you do not have to attend the hearing.
If you are making a sole application for divorce and you have a child or children under the age of 18, you must attend the hearing. The other party is only required to attend if they have lodged a Response to Divorce and seek to oppose the application.