What is the divorce procedure in Australia?
Divorce, also known as dissolution of marriage, is the termination of a marriage between a married couple.
We have adopted a ‘no-fault’ divorce procedure in Australia. It means that it does not matter why or whose ‘fault’ it was that the parties are getting a divorce.
For example, if someone had an affair that led to the breakdown of the marriage it is irrelevant to the Divorce Application. The only requirement for a divorce is the ‘irretrievable breakdown’ of the marriage.
An irretrievable breakdown is when the parties need to have no likely prospect of recommencing their relationship. This is proved to the Court through a minimum 12 month separation period.
How to apply for a divorce?
In addition to being separated for more than 12 months you must satisfy one of the following:
Be an Australian citizen; or
Live in Australia and regard Australia as your permanent home; or
Ordinarily, live in Australia and have done so for at least 12 months before the divorce application.
The Court filing fee for a Divorce Application is not cheap! It costs $865. If you have a health care card or are a pensioner the Court fee is $290.
This is a fee for the Court only and does not include legal fees for the divorce procedure in Australia.
There are two ways in which you can apply for a divorce, either together (joint application) or on your own (sole application).
If you submit a joint Divorce Application you and your spouse do not need to attend Court (even if you have children under the age of 18). This is because you have both agreed to the content in the Application and sworn or affirmed it.
A Court date is given upon the Court receiving the Application. On the Court day, the Divorce decree will be made ‘on the papers.’ That means that a Judge or Registrar makes the divorce decree in their chambers (office).
Applying for a sole application and having children who are under 18 years of age require each spouse to attend Court.
If you do not attend the hearing of your application, it may be dismissed in your absence. However, you may request that the application is heard in your absence if you are making the application together (even if there are children under the age of 18).
It is imperative that the court is still satisfied that proper arrangements have been made for the welfare of the children. In certain circumstances, you can apply to the Court in writing to appear by telephone at least seven days before the hearing (See Rule 5.06 of the Family Law Rules 2004 (Cth)).
If you are applying for a sole application, you must arrange for the other person to be ‘served’ with the divorce application. It is best to seek legal advice to ensure service is affected.
How long does the divorce procedure in Australia take?
You should allow several months from the time you file for the divorce application in Australia to the actual date of divorce. If there are problems with your application, it may take longer.
The biggest delay with the divorce process is the service of the documentation on your ex-partner. If your spouse is in Australia, the documents must be served at least 28 days before the court hearing. If your spouse is overseas, the documents must be served at least 42 days before the court hearing.
After your divorce application is heard by the Court or by a Judge or Registrar in Chambers, the divorce decree comes into effect one month and one day from that date. A copy of the divorce order will be made available to you, either by post or through the Commonwealth Courts Porta; (if you are a registered user) after the Order has become final.
If you have been separated for 12 months, and have been married for less than two years. You and your partner must attend a family counsellor if you wish to obtain a divorce. It is more difficult to obtain a divorce in these circumstances. And, it is suggested that you seek legal advice so that there are no errors in your application.
When can I remarry?
You are unable to remarry until your divorce order is final. That means one month and one day after the divorce order is made. If your hearing was on 1 May 2018, your divorce decree is effective on 2 June 2018.
It is imperative that couples allow adequate time for a divorce order to be granted, as they will be prohibited from remarrying until their divorce order has taken full effect.
Property Settlement and Children
A divorce order does not deal with issues regarding children or property (save for advising the Court of the current arrangements with children under 18 years of age).
The distribution of property, or “property settlement” must be done within 12 months of the divorce order date. And it is a completely separate process to the Divorce Application. If you cannot resolve your property matters within this timeframe you may need to seek leave of the Court and explain why there was such a delay.
In the instance, you cannot agree on issues regarding children, you must first attempt to utilise family dispute resolution. If you cannot reach an agreement or there are serious concerns as to parenting, you may need to issue proceedings for parenting matters.
At Argent Law, we understand that Family law, whether it is applying for a divorce or children and property proceedings can be an extremely stressful and long process.
We specialise in Family Law and will ensure that your Application and divorce procedure in Australia is processed effectively and hassle-free. Contact us today!