All About Divorce
Divorce is the legal dissolution of a marriage that has been recognised in Australia. It has a finite legal meaning and relates only to the dissolution of a marriage and not the potential surrounding issues of property settlements and custody arrangements.
Historically the reason for Divorce could impact upon any ensuing property or custody settlement outcome, for example an adulterer may have been given a smaller piece of the matrimonial property pool. This is no longer the case. Changes to the Family Law Act in 1975 made 'no fault' Divorce possible and altered the law such that there is now only one ground for Divorce recognised by Australian courts, which is citing "irreconcilable differences".
Is a Divorce Right for You?
A Divorce is right for you if you and your spouse no longer wish to continue your marriage and either you or your spouse or both of you:
- Have been parties to a legal marriage recognised in Australia; and
- Currently regard Australia as your home and intend to live in Australia indefinitely; or
- Are an Australian citizen by birth, descent or by grant of Australian citizenship; or
- Ordinarily live in Australia and have done so for 12 months immediately before filing for Divorce; and
- If there are children aged under 18, proper arrangements have been made for their care; and
- Have lived separately for at least 12 months and one day and there is no reasonable likelihood of you resuming married life. NB: It is possible to live together in the same home and still be separated.
How to Apply for a Divorce:
To apply for a Divorce, you must complete an Application for Divorce and file it with the Federal Circuit Court and pay the Application fee. You can file for Divorce jointly with your spouse or on your own. Many people prepare their own Divorce Application but you may also want to ask a lawyer to do it for you.
Divorce When Married Less Than Two Years:
When a couple have been married for less than two years there are certain additional requirements that must be met before the court will grant a Divorce. If you have been married less than two years and want to apply for a Divorce, you must either:
- attend counselling with a family counsellor or nominated counsellor to discuss the possibility of reconciliation with your spouse; or
- if you have not attended counselling, seek permission of the Federal Circuit Court to apply for a Divorce.
- The two years are calculated from the date of the marriage to the date of applying to the Court for a Divorce. The usual requirement that both parties must have been separated for at least 12 months before applying for a Divorce also still applies.
Serving Notice of an Application for Divorce:
If you have made a sole Application, you need to serve the Divorce Application on your spouse. If you have taken all reasonable steps to serve your Divorce Application on your spouse and you are unable to do so, you may apply to the Court for:
- Substituted service; or
- Dispensation of service.
If this is happening to you, you may wish to speak to a lawyer.
Opposing a Divorce Application:
Once you and your spouse have been separated for more than 12 months, there are few opportunities to oppose a Divorce Application. You can only oppose the Divorce where:
- There has not been 12 months separation as alleged in the Application; or
- The court does not have jurisdiction.
If you oppose a Divorce being granted, you must complete and file a Response to Divorce and appear in person, or instruct a lawyer to appear for you on the hearing date. The court will need to be made aware of the grounds on which you seek the dismissal of the Divorce as outlined in the Response to Divorce. It is important to note that the court will only consider your Response if it is made on one or both of the above listed grounds. If you wish to oppose a Divorce Application it may be worth obtaining legal advice.
Divorce Applications with Factual Errors:
If you desire the Divorce granted but believe there are factual errors in the Application you may file a Response to Divorce stating with which facts you disagree. The errors might, for example, be that dates of birth are incorrect or the details regarding the children are no longer correct. If you have filed such a Response it is prudent to attend the Divorce hearing.
Time Limits When Filing a Response To Divorce:
If you want to file a Response to Divorce, you need to file it at a family law registry:
- If served in Australia: within 28 days of the Application being served on you; or
- If served outside of Australia: within 42 days of the Application being served on you.
The Divorce Hearing:
Once the Application has been filed and the appropriate amount of time has passed since filing the Divorce Application for a Response to be filed, being either 28 or 42 days depending on the circumstances, a Divorce Hearing date will be set.
Attending the Divorce Hearing:
If there is no child of the marriage aged under 18 years, neither party will be required to attend the court hearing. The Family Law Courts website advises that if there is a child of the marriage aged under 18 years but you have made a joint Application usually neither party will be required to attend the court hearing. If however a sole Application has been made and there is a child of the marriage aged under 18 years, the applicant must attend the court hearing in person unless circumstances prevent it, in which case other arrangements such as a phone or video link up must be made. Even if there is no child of the marriage, if a Respondent has completed and filed a Response to Divorce they should attend the Divorce hearing. If they do not attend, the Court may decide the Divorce Application in the party's absence.
Time Expectation for a Divorce:
The entire Divorce process takes a minimum of 15 months. You need to stay separated for 12 months and one day, then make an Application for Divorce and wait for the court to set a date to hear your Application. After the matter has been heard in court, it will take at least one month to become officially Divorced.
Arrangements for Children, Property and Maintenance:
Many people believe that the Divorce process is where issues of property, maintenance and child arrangements will be decided, but this is not the case. The settling of property matters and the settling of children's matters are distinct legal processes.
It is prudent to speak to a lawyer about the proper proceedings when deciding issues of property, maintenance and child custody matters. However briefly surmised it can be said that you can either:
- Make a property settlement agreement with your spouse in the form of a Financial Agreement; or
- Make a property settlement agreement with your spouse and apply for consent orders via an Application for Consent Orders;
- Agree on a custody arrangement with your spouse and apply for consent orders via an Application for Consent Orders;
- Agree on a custody arrangement with your spouse and make a parenting plan; or
- Where you and your spouse cannot reach an agreement around either property or custody matters you can seek orders from a court. NB: The above property and/or child custody procedures are also available to de facto couples.
Time Limit for Property and Maintenance Orders:
If you wish to apply for maintenance for yourself or a division of the marital property, you must file the above mentioned Application within 12 months of the date the Divorce becomes final. If you fall outside of this time period you will need the Court's permission to apply. This will bring additional costs and delay to your Application.