Deciding to end a marriage is a difficult choice that often involves making emotional and complicated decisions.
Although the process of getting a divorce is relatively simple, the challenges arise due to the additional issues such as asset division and child custody that can make finalising the divorce and ending the relationship a daunting process.
If you are in the midst of a divorce or contemplating one, you might have queries regarding divorce, including your legal alternatives, rights, and obligations. In this article, we will answer 8 of the questions we’re asked as family lawyers about getting divorced in Australia.
1. How do you get divorced in Australia?
The process of getting divorced in Australia is relatively simple. To be granted a divorce, you must meet the requirements for divorce, and fill out a divorce application form. This form can either be submitted jointly with your spouse, known as a joint application, or alone, known as a sole application.
The divorce application form will require additional documentation, such as a marriage certificate, and if not in English, a translated copy. Once completed, the form and documents are uploaded to and lodged with the Commonwealth Courts Portal.
It’s worth noting that a divorce order is a formal and legal recognition of the end of the marriage, and it’s separate from property settlement and parenting matters. These issues must be resolved either formally or informally, but they don’t need to be finalised before you lodge your application for divorce.
If you and your partner reach an agreement about finances and children, it can be informal and not enforceable by the court. However, if you want to formalise the agreement, you can apply for consent orders. In most circumstances, it is recommended that agreements be formalised.
If you’re unable to agree, you may need the help of a legal professional or the Court to reach an agreement on the division of property. It’s important to apply for this settlement within 12 months of the divorce being approved.
Another important point to note is that the divorce process is the same for same-sex couples too.
2. What are the criteria need to apply for divorce?
Before applying for divorce in Australia, there are certain criteria that must be met by the couple. These requirements include:
- At least one of the spouses must be an Australian citizen, have been born in Australia, or have lived lawfully in Australia for a minimum of 12 months.
- The validity of the marriage must be proven. i.e. confirmed by producing a copy of the marriage certificate.
- The couple must have been separated for a minimum of 12 months and one day. During this period, they may either live apart or continue living together without being a couple, which is known as separated under the same roof.
- The breakdown of the marriage must be irretrievable (i.e. there is no chance of a reconciliation) , which is typically demonstrated by the 12-month separation period.
- If the marriage has lasted less than 2 years, the couple must provide a certificate from a counsellor who confirms that they have attempted to reconcile. However, in cases where domestic violence has occurred, counselling may not be mandatory.
It’s important to note that divorce in Australia is “no-fault” which means that you don’t need to prove that your spouse is responsible for any wrongdoing or the downfall of the relationship. The “no-fault” divorce system was introduced to help to make the process of divorce less hostile.
3. Is court attendance needed when you get divorced?
It’s not always necessary. As mentioned previously, for the divorce application, there are specific situations where you may be obligated to appear in court. One example is if you file for a sole divorce application and have children under 18. The attendance at court is usually limited to appearing by telephone/video conference and often the hearing takes no more than 10 minutes.
You may also be required to attend court if you and your spouse cannot reach an agreement regarding property settlements or parenting arrangements.
4. How long does it take to get divorced?
There is no expedited process for divorce, nor is there an option for an immediate divorce.
To be eligible to apply for divorce, you and your spouse must have been apart for a minimum of 12 months. Once you have submitted your divorce application, you can anticipate being granted a divorce order within 3 to 4 months.
The 12-month separation period is intended to give both parties ample time to contemplate whether divorce is the ultimate decision.
5. Can you get divorced if you’re partner doesn’t want to?
In Australia, you do not need to file for divorce jointly with your spouse. A sole divorce application can be submitted, and it is not mandatory for your spouse to sign the application before you can lodge it.
The Court will approve a divorce order if they are satisfied that the marital relationship has broken down beyond repair, and there is little possibility of reconciliation.
If you apply for a sole divorce, you must serve your spouse with the divorce application. This is to ensure that they are informed of the impending divorce application.
It is necessary to attend court if you are applying for a sole divorce and you have children.
If you are considering filing for divorce alone, we recommend that you consult a family lawyer. We can assist you in understanding the process and guide you in completing it swiftly.
6. What’s the difference between an annulment and a divorce?
When ending a marriage, spouses may seek legal orders in the form of a divorce or an annulment.
A divorce involves the termination of a valid marriage, while an annulment declares that a marriage was never valid. An annulment can only be granted under certain circumstances, including:
- If the marriage was not legally performed
- If one party was underage at the time of marriage
- If one party was coerced into the marriage
- If one party was incapable of consenting to the marriage due to a mental disability
- If one party was already married when entering into the marriage
- If the parties to the marriage are close relatives which is prohibited
The process of obtaining an annulment is typically more complex than that of a divorce, as the court must investigate the circumstances surrounding the marriage to determine if an annulment is appropriate. An annulment is also referred to as a declaration of nullity.
7. Is getting a divorce required after separation?
If you and your spouse decide to separate, you are not legally required to obtain a divorce. However, staying married can have an impact on your financial obligations and rights. It also may have an impact on your estate planning. Thus, it is recommended to seek legal advice.
If you intend to remarry, you must first obtain a divorce. Often when marrying for second time, you may be asked to provide proof of divorce and will need to produced the Divorce Order with the Court’s seal.
8. Do I need a lawyer to get divorced?
It is not mandatory to hire a lawyer to get divorced. In recent years the Court has made the process easier for people to apply without the assistance of lawyers and the process can be completed online. However, many individuals opt to work with a lawyer due to the complexities that arise during a divorce such as property settlements and parenting matters.
As each situation is unique and family law can be intricate, understanding your rights and obligations is not always straightforward. A divorce lawyer can assist you throughout the entire process, including the online application, and ensure that you understand your rights and responsibilities and that all necessary documentation is provided. This can make the entire process more manageable and efficient.
Do you need a divorce lawyer?
If you are in Australia and contemplating a divorce while seeking legal guidance, a family lawyer can provide assistance.
Family and divorce lawyers possess extensive qualifications and expertise in guiding couples through the divorce process and attaining resolutions that enable them to progress with their lives.
Divorce can be a difficult and emotional period, but you need not face it alone. You can have a no-obligation consultation with family lawyers to discuss your situation at no cost.
Discuss your situation with the team here at Dorter Family Lawyers. Based in North Sydney, our team is well-versed and highly experienced in all kinds of family law matters, including divorce and separation.