About the Author
Donna Nguyen
Published on October 14, 2021
You should anticipate that it will take at least 18 months to obtain a divorce from the time that you separate from your partner.
This article is designed to help you understand the time involved with each of the different parts of the divorce process in Australia.
What’s the difference between separation and divorce?
Separation occurs at the time when one party to a relationship decides that the relationship is over with no prospect for reconciliation, and then communicates this decision to the other party. It is important to know that separation does not need to be a joint decision. Only one person needs to decide that the relationship has come to an end, but it is necessary for the other person to be made aware that the separation has taken place. You must be separated for 12 months and 1 day before you can apply for divorce.
The 12 months of separation does not need to be continuous. You can have brief periods of reconciliation (less than 3 months) and still add together the periods before and after the reconciliation to reach the 12 months requirement.
In most cases, separation is marked by living in separate residences. However, sometimes it is necessary (or just preferable) for a separated couple to remain living in the same home. In that case, you will tell the Court that you were separated under one roof. You will need to complete an affidavit to confirm that you were genuinely separated. You can prove that by showing that you made concrete changes to your life and your relationship. For instance, you no longer share bank accounts, that you sleep in separate rooms and sexual activity had ceased.
Divorce is distinct from separation. Divorce is a legal process whereby a Court dissolves the marriage contract. It changes the legal status of the individuals involved and has a number of immediate effects. For instance, any will that you have drawn up leaving property to your spouse is invalidated by a divorce order.
An important thing to note is that divorce does not involve reaching a property settlement with your former spouse. Although a divorce does not involve a division of property, once you are divorced you only have 12 months in which to apply to the Court for a property settlement.
The divorce process
The divorce process differs based on whether you are lodging your application by yourself or jointly with your spouse. It is easier if you are able to cooperate with your spouse to lodge your application with the Federal Circuit and Family Court of Australia.
If you cannot lodge jointly for any reason, then you will need to file a sole Application for Divorce. You will then need to “serve” the Application on your spouse. It is not sufficient to just post the Application to your former spouse, it must be personally handed to them. You can ask a friend, member of your family, or a professional process server to execute service if you are uncomfortable doing it yourself.
Making a sole application also means that you will need to attend Court if there are any children under eighteen who are considered members of your family (including a foster child or step-child).
In contrast, a joint application for divorce does not require either party to be served, and there is also no requirement for either party to attend Court.
Filing for divorce
The easiest way to seek a divorce is to speak to a solicitor and ask them to manage the process on your behalf. In that case, you will need to provide some documents and answer some questions, but the solicitor will ensure that all of the other necessary steps are followed.
It is also possible to file for divorce without a solicitor. You can e-file you application via the Commonwealth Courts Portal. You will need to have certain things to be able to apply:
- a computer with a printer and scanner
- a copy of your marriage certificate
- a credit or debit card (Visa or Mastercard) to pay the online fee
If you do not have a solicitor and you are not able to apply online, you can contact the Court and ask for copies of the documents to be sent to you.
Time limits
There are important legal deadlines and time limits that apply to separation and divorce in Australia.
In terms of separation, it commences when both parties decide to separate, or one party decides to separate and communicates as much to the other party. It is a requirement that the couple is separated for one year and one day before filing for divorce: so if you separate on 1 August 2021, then you cannot file for divorce until 2 August 2022.
How much does it cost to get a divorce in Australia?
There are several costs associated with obtaining a divorce in Australia.
There are Federal Circuit and Family Court of Australia filing fees which must be paid. Whether you are lodging a joint application or a sole application, the court fees are $940 in 2021. Of course, if you file a joint application you can ask your spouse to pay a share, but there is no obligation for the other party to contribute to a sole application.
It is important to note that some applicants will qualify for a significantly reduced fee. Applicants who hold government concession cards (such as a Health Care Card) will only have to pay $310. Even if an applicant does not hold a concession card, they can still qualify for the reduced fee if they are able to demonstrate financial hardship based on income and expenditures.
Do I need a copy of the marriage certificate?
To divorce in Australia you need to produce a copy of your marriage certificate. If the marriage certificate is not in English it must be translated by an approved translator, who must provide an affidavit of translation. If you have mislaid your marriage certificate then you will need to obtain a replacement. This is a simple enough task if you were married in Australia, as you will be able to obtain a replacement copy of your certificate via Births, Deaths and Marriages.
This process can be more difficult and time-consuming if you were married outside Australia. In that case you will need to contact the relevant authority in the Country where you were married. If it is not possible to obtain a copy of your marriage certificate you will need to provide evidence to the Court of your efforts to obtain the marriage certificate.
Delays to divorce proceedings
Delays to divorce proceedings can happen for a number of different reasons.
As outlined above, divorce proceedings can be delayed if you need to obtain a replacement marriage certificate, especially if the certificate needs to be obtained from overseas.
Another type of delay only impacts couples who have been married for a brief period. If you have been married for less than two years, you will have to establish that there is no reasonable likelihood of reconciliation. Generally, you will have to provide evidence that you have attempted to resolve your issues with your spouse, for instance by seeing family counsellors. There are exceptions to this requirement, such as if there has been domestic or family violence.
It can also cause delays if you have difficulty locating your spouse so that you can serve the Application for Divorce, or if your former spouse refuses to accept service. In that case you may need to apply to the Court for an exemption to the requirement for service. This may mean that the Court will allow you to use “substituted” service (for instance, by allowing you to serve a family member of your spouse) or permit you to dispense with service altogether.
Delays can also occur if the Court is concerned that some aspect of your Application is not satisfactory. For instance, the Court may feel that the arrangements that you have planned for your children are not satisfactory. If you have minor children you should consult with a solicitor before filing your Application for Divorce, as you will need to demonstrate that the arrangements for your children are sufficient to meet their needs.
When do you get your divorce papers?
Your decree will be issued one month and one day after the hearing. You can obtain a copy of your marriage decree from your solicitor or via the Commonwealth Courts Portal one day after the decree is issued.
Can I remarry immediately after I get divorced?
Obviously you cannot remarry until your divorce is finalised. It is a criminal offence to marry someone when you are already married, and the second marriage will have no legal effect. It is important to remember that your divorce is not final at your hearing date, but when the decree becomes absolute one month and one day after the hearing.
It is best not to make plans to remarry based on the assumption that you will obtain your decree according to a certain time frame. If your divorce is delayed as the result of a problem with a document or a delay with the Court, you will have to postpone your wedding.
We recommended that you not set a date until after your hearing to avoid ruining your expensive wedding plans and disappointing your future spouse.
How can I get a quick divorce in Australia?
Unfortunately, there is no such thing as a quick divorce in Australia.
Divorce is a legal process that is controlled by the Courts and legislation, and there is no way to skip the steps involved in obtaining a divorce. Having said this, in special circumstances the Court may agree to expedite certain processes, such as the one month and one day delay between the hearing and the issuance of the decree.
Can you get a divorce without the other person signing in Australia?
It is possible to obtain a divorce in Australia without the other person signing anything. This is because divorce is not a joint decision. An individual chooses to end a marriage and applies to the Court for a legal implementation of that decision. There is no basis on which the other person can refuse to allow the divorce because they do not wish to end the marriage, or because it is against their religious beliefs.
However, it is necessary to inform the other person of the divorce. This is done by “service” whereby the Application for Divorce filed by one spouse is handed to the other spouse. Service can be executed by a professional process server, who must complete an affidavit affirming that service occurred correctly.
When do I need a lawyer to help with the divorce?
As discussed above, it is possible for you to complete a divorce application yourself. The family law courts website has helpful guides and information sheets that can help you understand the various steps. You may need advice from a solicitor if you have any challenges, such as difficulty in locating your spouse, or if you would like someone to represent you in court (if you are required to attend for a hearing).
If you are embarking on an amicable divorce you can access family dispute resolution services such as Relationships Australia to help you reach an agreement with your former spouse about parenting and property. However you may also need a lawyer to help you with the property and parenting decisions if you and your spouse cannot agree.
Unified Lawyers would be happy to help you through the process of obtaining a divorce and agreeing with your former spouse about property and parenting. Call today for a Free Consultation on 1300 667 461.
Published on October 14, 2021
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