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What is an Uncontested Divorce in Australia?

Published on May 12, 2023

    Profile picture of Jessica Adamovich family lawyer in Sydney

    About the Author

    Jessica Adamovich

    Growing up, Jessica was always surrounded by lawyers, including her father, elder sister and many family friends. She did her year 10 work experience at the Drug Court with her sister, which was an eye-opening experience.

    Growing up, Jessica was always surrounded by lawyers, including her father, elder sister and many fa... Read More

    Key Takeaways:

    • If you and your former partner both agree to get a divorce, this is known as an uncontested divorce.
    • An uncontested divorce can be applied for by filing a joint application for divorce together or by one applicant filing a sole application for divorce and serving the divorce papers to the other party.
    • While a former couple may agree to get a divorce, there are still a number of other matters that need to be resolved, like property settlements and parenting arrangements, and these may cause disagreements.
    • Generally speaking, when a divorce is uncontested, if there are disagreements over other matters, it is likely that mediation and negotiation will be successful in resolving these disputes

    When we see a divorce portrayed in a television series or a movie, it’s common for the divorce to be nasty or for one spouse to be blindsided by the idea of divorce. While this does occur for some people, for many couples, the decision to divorce is something that is mutually agreed upon and this is known as an uncontested divorce.

    While a couple may agree that the best option for them is to get divorced, there are still a number of matters that need to be resolved when a couple ends a marriage. In this article, we’re going to talk about what an uncontested divorce is and how this differs from a contested divorce. We’ll also discuss the various matters that need to be resolved when a couple divorces and why working with a family lawyer can make the process a lot easier.

    What is an uncontested divorce?

    An uncontested divorce means that both spouses agree to end their marriage and apply for divorce. This means that they both believe that their relationship has irretrievably broken down and they can no longer solve their problems or differences nor communicate effectively.

    While the former couple may mutually decide to get divorced, as we touched on above, there are a number of matters that need to be resolved when a couple divorces, such as how their property and assets will be split and parenting arrangements (which we will discuss in further detail below). Though the couple may have agreed to a divorce, they may not agree on how the above matters will be resolved and they may apply to the court to for parenting orders or property orders.

    What’s the difference between a contested divorce and an uncontested divorce?

    The main difference between contested divorces and uncontested divorces is whether the spouses mutually agree to get divorced. A contested divorce means that one person in the marriage doesn’t think that this is the best option for them and may try to argue against getting a divorce, whereas, in an uncontested divorce, both parties agree that they should get divorced.

    This difference then leads to another, which is the divorce application process. A divorce can be applied for either through a joint application for divorce or a sole application for divorce.

    A joint application involves both parties applying together and can have the benefit of not attending court even if they have children under the age of 18 – this is common in an uncontested divorce.

    A sole application for divorce means that one person applies for the divorce and then serves the divorce paperwork to the other party. The other party then has to respond by acknowledging that they have received the documents, or they can file a separate application in response to the divorce.

    What is the process for an uncontested divorce in Australia?

    Filing for divorce in Australia is simple in that it requires an online application to the Federal Circuit and Family Court of Australia and paying a fee, and as long as you meet the below criteria, you should be able to apply for a divorce:

    • You or the other party to the marriage were born in Australia, or you’re an Australian citizen, or you are lawfully present in Australia.
    • The marriage must have broken down and there is no reasonable likelihood that you will get back together.
    • You and your former partner have been separated for at least 12 months and 1 day.The way a couple separates differs depending on your unique circumstances. Commonly, it involves the couple living apart, however, some couples do remain living together throughout the separation period. This may be due to financial constraints or parenting arrangements and if you decide to do this, you will need to provide evidence that you are living separate lives.
    • You need to have been married for at least two years before applying for a divorce. If you have not been married for at least two years, then you may need to submit a Counsellor’s certificate or file an affidavit with the reasons as to why you’re getting divorced.
    • You have a valid marriage certificate. If you were married overseas and the marriage certificate is not in English, it will need to be translated and you will be required to provide an affidavit from the translator.
    • If you have children, you will be required to provide a parenting plan which includes information regarding their care arrangements.

    When applying for an uncontested divorce, the application can be a joint application for divorce, where you and your former partner apply together, or one spouse can apply for the divorce through a sole application for divorce and serve the divorce papers to the other spouse. The other spouse can then respond by signing the paperwork.

    Do you have to go to court for an uncontested divorce?

    If your divorce is an uncontested one, depending on how you apply for the divorce and how you resolve other matters that need to be finalised as part of your divorce will decide whether you need to go to court.

    For example, if you apply for a divorce in a joint application and you have children under the age of 18, then you don’t need to go to court. However, if you file for a sole application and you have children under the age of 18, then you will need to go to court.

    You may also need to go to court if you apply for orders regarding the other matters that need to be resolved as part of your relationship ending. You may apply for financial, property or parenting orders.

    Orders are usually applied for when the parties cannot come to a settlement agreement on how to resolve these matters themselves, like child custody arrangements or how the assets of the relationship will be divided. However, before you can apply to the court to have orders made, you will likely be required to undergo mediation to attempt to resolve these matters and come to a divorce settlement agreement.

    It’s also possible that you and your former spouse have come to an agreement and you want to make it legally binding. The agreement can be made legally binding by applying to the court for a consent order. This type of court order does not require a court hearing

    Is an uncontested divorce easier?

    Generally speaking, an uncontested divorce may be easier as the spouses agree that a divorce is the best way for them to move forward. However, as we mentioned above, a divorce involves resolving a number of subsequent matters, like how your assets including money and property will be divided and how you will parent moving forward.

    Often these matters can cause more tension than the decision to actually get a divorce. However, while the former couple may disagree initially over these matters, in instances of uncontested divorce, it’s common for the former couple to find it easier to resolve the dispute through mediation and negotiation than it is for other couples.

    What matters need to be resolved when you get divorced?

    When you get divorced, there are a lot of things that need to be resolved, including but not limited to:

    Parenting matters

    Parenting matters usually relate to how the parents will care for their children moving forward, including where the child/ren live and how they spend their time.

    Child support

    Child support relates to how the parents will financially provide for their children after they have separated. This can often be contentious as there are many different ways that child support can be managed which can make it complex. Parents can have a private agreement or they can use the assistance of Services Australia which is the governing body for child support in Australia.

    Spousal support

    Spousal support, also known as spousal maintenance, refers to financial support provided by one spouse to another and isn’t an automatic guarantee, rather, it needs to be applied for. The aim of this type of support is to provide support to a spouse if they are unable to adequately support themselves.

    Property settlement

    Property division or a property settlement is the decision of how the marital property and assets will be divided between the parties. These assets include cash, property, superannuation, vehicles and even pets. These assets may have been accumulated before, during and after the relationship.

    Some of these matters may easily be resolved prior to a divorce being applied for, while others may take longer to resolve. For example, a property settlement doesn’t need to be agreed upon before a divorce is applied for and the former spouses have 12 months from the time a divorce is finalised to make a property settlement.

    How much does an uncontested divorce cost?

    The cost of your divorce will vary based on your unique situation, however, as we touched on above, to get a divorce you can do so through an online divorce application. This attracts a filing fee which at the time of writing is $990 AUD + GST. For up-to-date filing fees information click here. The fees are the same for joint applicants or if you’re a sole applicant.

    If you choose to engage a lawyer as part of your divorce process, then you will almost always be required to pay legal fees as well.

    Do you need a lawyer for an uncontested divorce?

    No. When it comes to getting a divorce in Australia, whether it’s contested or not, you technically do not need a lawyer. You can apply for a divorce online and as the Australian divorce system is a no-fault system – where neither party needs to prove that the other party is at fault for the relationship breakdown – the process is a lot simpler than in other countries.

    The matters that need to be resolved when a marriage ends, like parenting matters, child custody arrangements and property settlements are usually the reasons as to why the need for legal advice arises. These matters can often be contentious, more emotional and quite complex and it’s possible that you may overlook or not understand all of your options available to you.

    Whether you’re in the process of getting divorced and you’ve hit a snag or you’re only considering a separation, it’s never too early to seek legal advice from an experienced family lawyer. You can ask a family lawyer questions, and seek their guidance in resolving matters through mediation, they can ensure that any applications you submit as part of your divorce are correct, and you can also be represented by them in Court matters and negotiations. Best of all, a family lawyer can provide you with all of the relevant information for the situation, so that you can make an informed decision.

    Even when you agree that a divorce is the best step moving forward, talking to a family lawyer will arm you with the right information for your situation. If you need family lawyers that specialise in divorce and the subsequent matters that can arise, like parenting matters and property settlements, here at Unified Lawyers, we can help you. Our services are available Australia-wide and with offices in, Sydney and Melbourne, it couldn’t be easier to resolve your legal matters today.

    Call us on 1300 667 461 or book a free consultation using the button below.

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