People often talk about going through a ‘messy divorce’, when in fact, obtaining a divorce is the easiest part of separation. Are you considering getting a divorce and wondering what the process will be like?
Married couples in Australia can apply for divorce if their marriage has broken down irretrievably. To apply for an Application for Divorce the parties need to be separated for a period of at least 12 months; and
• One of the parties must regard Australia as their home and intend to live in Australia indefinitely or
• be an Australian citizen by birth, descent or grant of Australian Citizenship, or
• have lived in Australia and have done so for 12 months immediately before filing the divorce.
Step 1: Separation
In Australia, you must be separated for at least twelve months prior to applying for your divorce. What some people aren’t aware is that you and your spouse can be separated but living under the same roof for a period of time. Often due to financial or emotional reasons parties are unable to formally separate and live in different residence, so they may initial separate and live in the same home until they resolve their property settlement.
Step 2: Preparing your Application
When filing an Application for Divorce you can do so by yourself, or jointly with your former spouse. Either way you need to complete an Application for Divorce form which is quite straight forward and can be downloaded from the Federal Circuit Court of Australia website. When you file the Application you are charged the Court filing fee, which is currently $1,200. When you file the application for divorce you are also required to file a copy of your marriage certificate.
When you prepare your application you need to answer some questions including where and when you married, when you separated and you are also required to provide some information about any children from the marriage who are under the age of 18. If you have not signed an application for divorce jointly you must ensure that your partner is served with the application. The court cannot hear the application or grant the divorce if your partner has not been formally served.
Step 3: Your Divorce Hearing
You do not always, depending on your circumstances, have to attend court when your divorce application is heard. You must attend your Divorce Hearing where:
- You made the Application for Divorce yourself; and/or
- You and your former spouse have children who are under the age of 18 years.
If you do not have children under 18, or if you or your former spouse made a joint Application for Divorce, you can both choose not to attend your divorce hearing and the matter will be dealt with in your absence.
What happens at the hearing?
Your matter will be one of many divorce applications listed before the Court on any given day. Many people get their lawyer to attend with them when their divorce hearing occurs. Divorce hearings are generally quite brief. During the hearing, the Registrar may ask you questions about the information in your application or about the service of your application if relevant. If young children are involved, the Registrar may also ask about the arrangements for the care of the children, such as which parent they live with, how often they spend time with the other parent and how they are financially supported.
Step 4: The Outcome
If a Registrar is satisfied that the grounds for divorce have been established, and the Application for divorce has been properly served, the Court will grant the Divorce. One month and one day following the day of the hearing a Divorce Order will be sent to you and your former spouse and this is the formal documentation that acknowledges that you are formally divorced.
Clients often obtain a divorce after the parties have resolved all other issues in dispute including the property division, the care arrangements of the children, the financial support of the children, and the financial support of either party. In some case if matters are taking some time to resolve clients may file the application after the 12 month period of separation has occurred.
Of great importance for any party filing an application for divorce is the need to remember that once a certificate of Divorce has been obtained the parties must, if they have not already, commence proceeding in respect of their property settlement within 12 months of the certificate being obtained.
If we can assist you in the preparation of an Application for Divorce or in finalising a property or parenting settlement please do not hesitate to contact us on (02) 9523 5535.