If you’re going through a divorce, you’re not alone: one in three marriages in Australia end in divorce.
Divorce is the legal termination of a marriage and because it’s a legal process, there are some hurdles you need to clear to be able to proceed with one.
Firstly, you will need to satisfy a court that your marriage has irretrievably broken down. This is done by demonstrating that you and your spouse have been separated for at least 12 months before applying for a divorce.
To be able to apply for divorce in Australia, either you or your former partner also need to:
- Be an Australian citizen by birth, descent or grant of Australian citizenship; or
- Regard Australia as your home and intend to live in Australia indefinitely; or
- Ordinarily live in Australia and have done so for 12 months immediately prior to applying for divorce.
How do you apply for divorce in Australia?
There are two ways to apply for a divorce – either as a joint application made by both you and your former partner, or a sole application made by one of you. If your spouse doesn’t agree to the divorce, you can make a sole application.
If you make a sole application, it will need to be personally served on your former partner and, if there are children under 18 years old, you will need to attend a court hearing.
A joint application for divorce means that you and your spouse mutually agree to get a divorce. If you do not have children under 18 years, there is no requirement for either of you to attend court.
It is also possible to get a divorce while you still live in the same house. This is referred to as ‘separation under one roof’ and requires you providing the court with evidence of things like:
- A change in sleeping arrangements;
- A reduction in shared activities;
- A decline in shared household duties;
- The dividing of shared financial accounts;
- Notifications made to government departments or institutions; or
- Telling your family and friends about your separation.
In order to apply for a divorce you will also need to produce:
- Your marriage certificate, or a translated copy if you were married overseas and it is not in English;
- Contact details for your spouse or their solicitor;
- Any government concession card, if you wish to apply for a reduction in the court’s filing fee for divorce.
Do I need a lawyer in order to get a divorce?
In Australia, we have what is called ‘no-fault divorce’, meaning that the court does not take into consideration the reasons for why the marriage ended and therefore, there is no blame game to be conducted.
You should also be aware that while divorce of course means you need to consider important issues like the future parenting arrangements for the children, and separating your financial assets and jointly owned property, these will be treated separately to your divorce. Importantly, though, you should consult one of our experienced Sydney family lawyers about the timing of these matters before you proceed with divorce in order to protect your interests and those of your children.
If there is a joint application for divorce and there are no children aged under 18, you don’t need to engage a lawyer and in fact can do it yourself via the DIY Divorce Kit available through the Family Court of Australia.
As mentioned earlier, if you make a sole application for divorce and have a child or children under the age of 18, you must attend a court hearing. Your former partner will only be required to attend if they have lodged a Response to Divorce and wish to oppose your application.
Same sex couples whose marriages are recognised in Australia can access divorce in the same way as heterosexual couples. This includes couples married overseas before December 9, 2017, after which same sex unions became legal in Australia.
If you meet the other criteria we have detailed above, once your application for divorce is filed with the court you will be allocated a hearing date and then your divorce order will be issued one month and one day later if it is granted by the court.
Be aware of time limits
If you need to come to a property settlement with your former partner, be aware that this needs to happen within 12 months of your divorce order. If you miss this deadline, it’s quite a process to convince the court to allow you an “out of time” application.
To meet time limits, to ensure you are eligible to apply for divorce, and to navigate court processes for divorce and the related family issues around splitting up can all be made easier by seeking the advice of an experienced Sydney divorce lawyer.
Because divorce is so common, most legal professionals who practice in family law will offer a fixed fee package when it comes to an application for divorce. Their guidance and assistance can make the whole process so much more straightforward.
How We Can Help
At Ivy Law Group we have a team of experienced Sydney lawyers who can help you navigate separation and divorce and of course, all that follows.
At Ivy Law Group we are committed to sharing useful information regularly. We understand for some people the importance of getting some context around your legal issue before engaging legal help!
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Marital separation (including divorce) and de facto separation is an unfortunate reality of the world that we live in. While some manage to navigate the emotional minefield with minimal anguish, most end up embroiled in bitter legal proceedings. While financial concerns are often of great importance when separating, far more important are matters of the heart: children. When making arrangements for children in a divorce, the Court will place the greatest amount of importance on the “best interests” of the child. But do those best interests include the child’s own wishes?