Ending a marriage is always a challenging decision. Still, if you’ve come to the difficult conclusion that divorce is the best option, it’s essential to understand the process and legal requirements on how to get a divorce.
Divorce is the legal process of ending a marriage, dissolving the legal bond between spouses, and allowing them to live separately and independently.
What Is A Divorce Order?
A divorce order is a legal document that a court issues to end a marriage formally.
It confirms that the marriage between two individuals is legally dissolved, and they are no longer considered husband and wife in the eyes of the law.
Once a divorce order is granted, both parties are free to remarry if they choose to do so.
It is an essential document that signifies the finality of the marriage and the beginning of a new chapter for the individuals involved.
How To Get A Divorce in Australia?
Divorce can be a complex and emotional journey, but understanding how to get a divorce can help ease the burden.
Here’s a step-by-step guide on how to get a divorce in Australia, including the legal framework and essential considerations.
1. Before You Start
Before applying for a divorce, decide whether to file a sole or joint application. In a sole application, the applicant signs and serves the application to the respondent, with court attendance required if there are children under 18. In a joint application, both parties sign the application after review, and no service is needed. Court attendance is generally not required for joint applications unless specifically selected.
2. Meet the Legal Requirements
In Australia, you must meet certain legal requirements before applying for a divorce. These requirements include:
a. Jurisdiction:
At least one spouse must regard Australia as their home and intend to live in Australia indefinitely or be an Australian citizen by birth, descent, or grant of citizenship.
b. Separation:
The marriage must have irretrievably broken down, demonstrated by a period of separation lasting at least 12 months. This means you and your spouse have lived separately and apart for the required duration.
Also read: How Long Does a Divorce Take in Australia
3. Seek Legal Advice
Divorce can involve complex legal issues, especially regarding property settlement and child custody arrangements. Before initiating the divorce process, seeking legal advice from a family lawyer is advisable.
They can provide personalised advice based on your circumstances and protect your rights.
Consider the following before applying for a divorce:
- Married less than 2 years: You need a counselling certificate. Contact the Family Relationship Advice Line (FRAL) on 1800 050 321.
- Separated but living together: Provide evidence of the separation, including affidavits from both parties and a third person.
- Children under 18: Provide details on housing, care, schooling, health, parental contact, and financial support.
- Unable to locate spouse: If you cannot find your spouse, mark their address as ‘unknown’ and seek an order to dispense with or substitute service.
- Change of name: If your current name differs from your married or maiden name, file an affidavit explaining the difference.
- Living overseas: You may still apply for a divorce if eligible, but must provide an Australian address for service.
- Married overseas: You can apply for a divorce in Australia if one party meets the eligibility criteria and has a valid marriage certificate.
4. How Much Will It Cost?
The divorce application fee is $1060, but you may qualify for a reduced fee of $350. Check the Guidelines for fee reduction to see if you’re eligible. You must provide evidence, such as a health care card copy. For sole applications, only the applicant needs to qualify for the reduced fee; for joint applications, both parties must qualify. If the full fee causes financial hardship, apply for a reduction. The fee is payable with a Mastercard or Visa credit/debit card via the Commonwealth Courts Portal. If you lack a credit/debit card, you can purchase a pre-paid debit card from retail outlets.
5. Prepare the Divorce Application
To begin the divorce process, you must complete and lodge a divorce application form with the Federal Circuit Court of Australia. You can apply jointly with your spouse or separately if your partner is unwilling to cooperate.
6. Serve the Divorce Application
If you file for divorce jointly, there is no need to serve the application on your spouse. However, if you file separately, you must arrange for a copy of the divorce application to be given to your spouse according to court rules.
7. Attend the Divorce Hearing
In some cases, a divorce hearing may not be required. However, if there are children under 18 involved or the court requires further information, a hearing date will be set.
Both parties must only attend the hearing if they have filed a joint application. If everything is in order, the court will grant the divorce, and a divorce order will be issued one month and one day after the hearing.
8. Consider Child Custody and Property Settlement
It’s essential to note that a divorce only legally ends the marriage. Child custody arrangements and property settlements are separate matters that require careful consideration.
If children are from the marriage, you must address custody, visitation, and child support arrangements.
For property settlement, reaching a mutually acceptable agreement or, if necessary, seeking court intervention to divide assets and liabilities fairly is recommended.
How To Oppose A Divorce?
Legal Representation: It is essential to seek legal advice from a family lawyer to understand your rights and options. An experienced lawyer can help you prepare and represent your interests effectively.
File a Response: When you receive the divorce application from your spouse, you will have an opportunity to file a response with the court. In your answer, you can state why you oppose divorce and present your arguments.
Contest the Grounds: If the divorce application is based on specific grounds (e.g., separation), you can contest the accuracy or validity of those grounds. Provide evidence and facts to support your position.
Attend Court Hearings: If the court schedules a hearing, attend and present your case. This is an opportunity to explain your reasons for opposing the divorce and respond to any questions from the court.
Gather Evidence: Collect any evidence or documents that support your position, such as financial records, communications, or evidence of attempts to reconcile.
Child Custody and Property Division: If you have children or significant assets involved, address these issues separately from the divorce proceedings. Present your preferences for child custody arrangements and property division.
Seek Legal Remedies: If your spouse is not meeting their obligations, you can pursue legal remedies for specific issues (e.g., non-payment of child support).
How We Assist Our Clients: How To Get A Divorce
Stella and Jordan, a couple who recently decided to end their seven-year marriage, approached us as a law firm.
We listened to their concerns during the initial meeting and outlined the divorce process, explaining the legal requirements and potential outcomes.
We began preparing the necessary divorce paperwork upon their agreement, ensuring accuracy and completeness. We guided them through the documentation.
After presenting their case, the court granted their divorce. We successfully helped Stella and Jordan navigate the divorce proceedings, ensuring their rights were protected and enabling them to move forward positively with their lives.
Remember to Seek Legal Advice
Getting a divorce in Australia involves several legal steps and requirements that must be met. It can be emotionally challenging, but understanding the legal process can provide clarity and guidance.
Remember to seek legal advice, file the necessary documentation, and consider the implications for child custody and property settlement.
With the proper support and knowledge, you can navigate through this challenging period and move towards a new chapter in your life.
Director of Melbourne Family Lawyers, Hayder manages the practice and oversees the running of all of the files in the practice. Hayder has an astute eye for case strategy and running particularly complex matters in the family law system.
