17 Things You Need To Know About The Divorce Process

The Divorce Process in Australia

Clients often come to an initial consultation with us stating that they “want a divorce” when what they really mean is that they want to resolve a property settlement dispute with the other party or to sort out their parenting arrangements following separation.

Whilst many clients genuinely believe the term “divorce” to be all-encompassing, and to include resolution of financial matters, parenting issues and child support between the separating parties, the truth is that the divorce process itself is usually the most straightforward and uncontroversial aspect of separation and an entirely separate process from resolving a financial settlement or arrangements for children.

Obtaining a divorce simply means that the parties are no longer legally married – it is the formal, legal end of the parties’ union.

It is largely an administrative process, but does require one or both parties to apply to the Family Court for a Divorce Order, and may require attendance at a short hearing in certain circumstances.

As you will note below, however, obtaining a divorce can have important consequences for other aspects of family law, most notably property settlements and spousal maintenance.

Obtaining a Divorce Order will also trigger a statutory time limit to apply to the Family Court for property orders and/or spousal maintenance.

Here are the answers to some of the most frequently asked questions in relation to the divorce process in Australia:

 

How long does a divorce take?

Obtaining a final Divorce Order (the “Decree Absolute”) generally takes at least 4 months from the date of filing the application. You should allow for longer if there are problems in locating or serving the other party.

If you are planning to remarry, you must ensure that there is plenty of time to allow for the divorce to be finalised, particularly if the other party is overseas, can’t be located or otherwise plans to oppose the application for any reason (or sometimes no reason at all!). All of these factors can cause significant delay.

 

How much does a divorce cost?

This will depend on, firstly, whether a lawyer is engaged to assist and, if so, whether there are any issues of an overseas marriage, children under the age of 18 years, disputes over the date of separation or service of the Application on the other party.

Generally speaking, legal fees for the “standard” divorce, where there are no delays or hiccups in e.g. service, etc., are likely to be around $1,200 plus the filing fee and disbursements.

The filing fee for a divorce application (paid to the Court) is currently $910. Concessions apply for holders of a Health Care Card or similar benefit.

If legal representation is required in respect of a Divorce Application, naturally, legal costs will be incurred, however the amount will depend on a range of factors.

Please contact us for a personalised fee estimate.

 

What are acceptable grounds for divorce in Australia?

There is only one ground for divorce in Australia – irreconcilable differences evidenced by a period of not less than 12 months’ separation.

To file an application for divorce you must:

• be able to prove that the marriage has irretrievably broken down. This is demonstrated by having been separated for a period of 12 months or more; and
• have been married for more than 2 years, or else attended the necessary counselling with the Family Court.

Grounds such as unreasonable behaviour, adultery, desertion etc., have been invalid since the Family Law Act was introduced in 1975.

Prior to the introduction of the Family Law Act in 1975, Australia’s divorce system was “fault-based”, meaning that blame needed to be assigned to one party (and proved) in order for the Court to grant a divorce.

Although most modern countries have now moved away from the archaic fault-based system, it may be surprising to learn that many countries still operate under this structure, for example, the United Kingdom.

An application for divorce may only be made in Australia after the parties have been separated for at least 12 months.

If the parties have reconciled for 3 months or more, then the 12 month qualification period has to start anew.

 

I haven’t been married for more than 2 years… so what can I do?

If you have been in a short marriage of less than 2 years, you must attend mediation with a court-approved family and child mediator to discuss the possibility of reconciliation.

Only then can you file an application, together with a certificate completed by the counsellor.

If you and/or your spouse cannot, for whatever reason, undergo counselling, you will need to set out the reasons in an affidavit filed with your application. If you are near the 2-year threshold, and there are no compelling circumstances, it might be simpler just to wait things out.

 

Can the other party oppose a divorce?

There are very few circumstances where a party can oppose a divorce application. The main reason for opposing a divorce usually lies in a dispute over the date of separation or jurisdiction, e.g. a contested date of separation may not satisfy the strict requirement of a 12 month separation period or proceedings may already be on foot in another country, etc.

Failure to reach agreement on property settlement or parenting arrangements are not grounds for opposing a divorce, however.

If they do wish to oppose your divorce, then your former spouse must file a response to your application which then needs to be served on you or your lawyer in advance of the hearing date.

The filing of a response might result in the court not granting the application at the first hearing as this may delay the making of the Divorce Order and require a determination by the presiding Judicial Officer after the filing of further evidence from both parties. This situation can arise where the Applicant claims to have been “separated under one roof”, which can sometimes be more difficult to prove.

 

What if my spouse and I have separated but still live in the same house?

Parties can be separated even if they are living in the same residence as long as the basic requirements of separation are able to be proved. You must be able to demonstrate a total break with the marital relationship which may involve the following:

• the ceasing of sexual activity and sleeping in separate bedrooms;
• living in separate rooms within a house;
• not sharing meals or socialising together;
• not giving the impression to family, neighbours and friends that the marriage is continuing;
• operating separate bank accounts.

These criteria are not exhaustive, however.

Being separated under one roof requires third party evidence from a neighbour, friend or family member that the parties are in fact separated, despite living under the same roof.

 

What if I cannot locate my spouse to serve them with my application?

An Application for Divorce must be served on the other party so they are aware of the Application, and evidence of service must be filed with the Court prior to the Divorce Hearing.

If you do not know the whereabouts of your spouse you can still apply to the Court for your divorce to proceed. You must, however, prove to the Court that you have used your best endeavours to contact your spouse to notify them of your application.

Occasionally, an application for substituted service might be appropriate. This means that your application is served on a close associate or family member of the other party, instead of on them personally.

If successful, the Court will permit documents to be served on a close associate or family member via electronic means such as email or even Facebook.

Legal work involved in securing this type of service will add to your costs, as well as delaying the final Divorce Order.

 

How long after my divorce can I remarry?

Please note that it is illegal to remarry before your divorce becomes final. This is usually one month and one day after your divorce is granted in court. To marry a third party before your divorce becomes final is classed as bigamy and your subsequent marriage will not be legal.

Again, do not leave too short a gap between the anticipated granting of your divorce and your proposed remarriage date as things can occasionally go wrong – e.g. you are unable to locate your spouse or the divorce is opposed.

 

How will divorce affect my children?

Getting divorced is a very different issue to resolving the children’s care arrangements after separation, and you don’t need to wait to get divorced to sort out these important matters.

If there are children under 18 the Court will need to make sure that proper arrangements have been put in place for their care and welfare. This does not mean, however, that parents cannot be in dispute over parenting arrangements – merely that the children’s physical and emotional health is being properly maintained.

Often parties will attend mediation to negotiate post-separation parenting arrangements of children. This is, in any event, a compulsory step prior to initiating parenting proceedings in the Family Court. Parents can agree to enter into a Parenting Plan to document their agreement or choose a more formal and legally binding option such as an Application for Consent Orders.

Notwithstanding that parenting issues are quite separate to the divorce, the Court will require information in the Divorce Application regarding the current parenting arrangements for the children, including information about their care, health and education. The Judicial Officer must satisfy themselves at the Divorce Hearing that there are appropriate arrangements in place for the children prior to making a divorce order, even if some of these arrangements are being contested.

Please consult our page on Parenting Arrangements for more information.

 

Can I get a divorce in Australia if we were married overseas?

The Family Court has the power to dissolve overseas marriages, provided it has the jurisdiction to hear the Application. The Court’s jurisdiction is enlivened if the applying party

• is an Australian Citizen by birth, descent or grant; a permanent resident; or
• regards Australia as their permanent home and intends to live in Australia indefinitely

As long as these requirements are met, you can apply for a divorce in Australia. You will require a copy of your overseas marriage certificate.

If the marriage took place overseas and the Marriage Certificate is in a foreign language, the Certificate will need to be translated and the translation filed with the Divorce Application.

 

Should we consider a joint application for divorce?

Yes – joint applications are not only possible but are usually quicker and more cost-effective.

There are no service fees involved and even if there are children under 18 your application will usually be dealt with in chambers – meaning no lawyers’ attendance and lower legal fees.

 

Who gets what? How does divorce affect my property or maintenance rights?

Granting a divorce does not determine parenting matters or resolve property settlement/maintenance disputes.

These are usually much more complex than a divorce application and we can assist you with these issues if required.

The only correlation between divorce and property/maintenance is that your application for maintenance or property settlement must be filed within 12 months of your divorce becoming final.

Otherwise, the consent of the Court to hear and determine such an application must be sought separately.

See our article on Understanding Time Limits in the Family Court.

In the large majority of cases, this statutory time limitation is not a concern. Most separating couples will seek legal advice relatively quickly after separation and an agreement reached early in the piece. This means that most of the time parties will have already resolved their financial settlement (or at least have filed an application for property settlement) by the time they can apply for divorce.

For more information, please consult our page on Matrimonial and De Facto Property Settlement.

 

The application asks for my children’s details – what about foster children or adopted children?

All children who were treated as a member of the family prior to separation must be shown as children of the marriage, and the care arrangements for all children must be disclosed.

 

Do I have to be divorced to finalise my parenting arrangements or my property settlement?

No, arrangements about property and parenting issues can be made at any stage following separation. Applications for property settlement must be filed within 12 months of your divorce becoming final, however.

 

Now that I am divorced, can I use my maiden name?

There is no legal obligation upon you to retain your married name after divorce – in fact, you may use your maiden name at any stage if you like, even during marriage.

There is no formal process necessary to revert to your maiden name – a simple letter of notification to banks, government bodies, etc. will suffice.

 

Am I able to change my children’s surnames?

Changing a child’s surname is often hotly contested and can be a complicated issue.

Generally, the Registrar of Births, Deaths and Marriages in most states will require an Order from the Family Court authorising the change of name if the other party will not consent. If the other spouse is deceased or is otherwise not named on the children’s original birth certificate, then a Court Order may not be necessary.

 

What effect does my divorce have on my will?

Any gift in your will left to a spouse will become invalid upon your divorce. Accordingly, separated spouses should make new wills as soon as possible after separation to reflect their new wishes.

You may also wish to remove your spouse as the nominated beneficiary for your life insurance and superannuation entitlements.

If your Will has not been updated since separation you should obtain Will & Estate Planning advice as soon as possible.

 

Do I have to get divorced?

Technically, no. Many people choose to remain legally married despite being separated. However, this can affect their legal obligations and impact upon a number of complex issues such as the distribution of deceased, Family Provision claims and decision-making in the event of incapacity.

Further, and perhaps obviously, staying legally married means a person cannot remarry.

 

Need Assistance?

Should you wish to make an application for Divorce or seek advice on any other aspect of Family Law, fill out the enquiry form below or contact DS Family Law on (08) 9486 1766 for an initial consultation. For more information, head over to our Divorce Page.

 

The above information is general in nature and is not specific advice for your situation. If you have questions about how the information contained in this article may apply to your situation, you must seek independent legal advice.