The breakdown of a marriage can result in anxiety and uncertainty about the future.
The decision to take the next step and apply for a divorce is one of the most difficult decisions individuals and couples are faced with in the separation process.
We understand that the divorce process can be time consuming and difficult to navigate, and we are here to simplify the process for you.
Requirements to obtain a Divorce
In order to obtain a divorce certificate, an application for divorce must first be filed with the Family Law Courts of Australia (“the Court”). It is possible for one spouse to file an application on their own, or for both spouses to make a joint application to the Court.
Australia is a ‘no-fault divorce’ jurisdiction. This means that the Court does not require you to provide a reason for separation, nor does it attribute blame in the breakdown of a relationship. Obtaining a divorce certificate does not require the consent of the other spouse.
Before an application for divorce can be filed with the Court, the following requirements need to be satisfied:
In addition to the above, at least one spouse to the marriage must be eligible to apply for divorce in Australia. To be eligible to apply, either you or your spouse must:
If you and your spouse have been married for less than 2 years, you both must jointly attend a session with a counsellor to discuss prospects of reconciliation. Following this session, the counsellor will provide you with a counselling certificate which you must file with your application.
If you do not participate in counselling, you will need to file an affidavit with the Court outlining your reasons for non-attendance on a counsellor (such as family violence).
Separation Under the Same Roof
The Court understands that spouses may continue to reside in the same home following separation for a variety of reasons, including financial circumstances, care of children under the age of 18 or cultural practices.
It is possible to still apply for divorce even if you and your spouse remained living in the same home during the 12-month separation period. This is referred to as ‘separation under the one roof’.
In these circumstances the Court requires evidence to be filed with your application which proves that you and your spouse were infact living separately and apart during the period in which you both remained living in the same home. This is done by filing an affidavit from both you and your spouse (in circumstances of a joint application), or from you and an independent person such as a relative or friend (in circumstances of a sole application).
The Application Process
An application for divorce is filed online with the Court.
Generally, you will need to file the following documents with your application:
Once filed, you will be allocated a date for your Divorce Hearing. This date will normally be a number of months after you have filed your application.
If you have filed a sole application, you will also need to arrange for your spouse to be personally served with the application at least 28 days prior to the hearing date. You cannot provide the documents to your spouse yourself, and you will need to engage a third party (such as a professional process server) to serve the application on your behalf.
Once served, an Affidavit of Service and Acknowledgement of Service will need to be filed with the Court.
The Court Hearing
A Divorce Hearing in the Court is usually delegated to a Registrar.
You must attend the Divorce Hearing if you have made a sole application for divorce and there are children of the marriage under the age of 18 years. The Court must be satisfied that there are proper arrangements in place for the care, welfare and development of the children, prior to granting the divorce.
If the Court is satisfied that the requirements for divorce have been met and there are no issues with the application, the Court will grant the divorce.
The divorce order will then take effect and become final one month and one day from the date of the hearing.
Parties seeking to remarry will not be able to do so until the divorce order becomes final.
Considerations after Divorce
Property
You can apply to the Court for a property division from the date of your separation. However, a divorce order triggers a time limit for property matters, in the event that you and your spouse are yet to reach a property settlement. If you wish to seek a property settlement, you must make an application for property orders within 12 months of the date the divorce order takes effect.
If you are outside of this 12-month period it is much more difficult and costly to proceed. You will need the permission of the Court to do so, and there are only limited circumstances where the Court will allow an application for property orders to proceed outside of the limitation period.
Last Will and Testament
A divorce order will invalidate and revoke all provisions that provide gifts or a share of your estate to your former spouse, and will also revoke any appointment of your former spouse as executor or trustee. Other terms, such as guardianship provisions, may still remain valid following your divorce.
Therefore, it is important to seek advice and update your Last Will and Testament following your divorce to ensure that your intentions concerning your estate are accurately reflected following your divorce.
Conclusion
Although we have simplified the divorce process for you, and it is possible to apply for divorce without legal representation, many people prefer the convenience of a lawyer acting on their behalf, so that they are guided through the process from beginning to end by a lawyer who is competent in dealing with the court process and the technical legalities that often arise.
If you or someone you know wants more information or needs help or advice with the divorce process, please contact our Intake team on (03) 8415 5600 or email us at reception@hartleyslawyers.com.au.
This article is intended to provide general information only. You should obtain professional advice before you undertake any course of action.
**Special offer for clients of Hartleys Lawyers**
We are currently offering a 10% discount to all pre-existing clients of Hartleys Lawyers who wish to obtain a divorce. In addition to this, we are also offering a 10% discount to pre-existing clients who wish to make or update their Will.
Please contact your solicitor or our Intake team on (03) 8415 5600 if you wish to take advantage of this offer.
Please note that this offer is for a limited time only and ends on 30 June 2021.