Divorce
What is a divorce?
A divorce brings about the legal end to a marriage.
Getting a divorce doesn’t mean that anything is sorted out or decided about the arrangements for your children and/or the division of your property.
A divorce application is something different and separate to an application about property and/or children.
If you and your ex-partner have an agreement about arrangements for your children and/or division of your property, you should have a lawyer prepare a Form 11 Application for Consent Orders to ensure that your agreement is binding, enforceable and final. You can file a Form 11 Application for Consent Orders any time after separation, you don’t need to be divorced.
If you and your ex-partner can’t agree on arrangements for your children and/or division of our property and want the Court to decide for you, you need to file a separate application (that is, an application that is different to a Form 3 Application for Divorce) with the Family Court. Again, you can file such an application any time after separation, you don’t need to be divorced.
Do I need to get a divorce?
Not necessarily. Many people separate and remain separated indefinitely without getting divorced.
However, you should know that there are some dangers with this:
if you remain married (but separated) and die without leaving a valid will, the laws of intestacy (that is, laws that determine what happens to your estate if you die without leaving a valid will) will determine to who your estate passes. All or some of it may pass to your former partner;
for as long as you remain married (and consent orders have not been made that deal with how property is to be divided between you) it is open to either party to apply to the Family Court for a division of the property and/or spousal maintenance. This could potentially happen many years after separation and after many assets have either been disposed of, or, new ones acquired. All assets that you own at the time an application is made (including those acquired after separation) will need to be disclosed, will be taken into account by the Family Court and will be potentially up for division between you and your former spouse.
if you intend to remarry then, obviously, you will need to ensure that you are divorced from your former spouse first. It is best to not make wedding plans until the divorce order has taken effect. A party to a marriage who marries before a divorce order has taken effect commits the offence of bigamy.
What effect will a divorce have on my “rights”?
Once the divorce order takes effect (which is one month and one day after the date of the divorce hearing):
your marriage will be terminated;
you will have 12 months within which you must file an application for property or spousal maintenance (that is, if consent orders have not already been made to deal with these issues). In other words, the divorce order will start the clock ticking and activate a time limit;
your existing will will be revoked (unless it has been made specifically in contemplation of your divorce).
What are the requirements for getting a divorce?
The Court must be satisfied that:
you were, in fact, married. A copy of your Marriage Certificate needs to be filed together with your Form 3 Application for Divorce. If you were married in a different country and your Marriage Certificate is in a foreign language, you will need to have the Certificate translated into english and the translator will need to swear an affidavit;
they have jurisdiction to grant the divorce order. This means that you or your former spouse either (1) regard Australia as your home and intend to live indefinitely in Australia; OR (2) are an Australian citizen by birth, descent or by grant of Australian citizenship; or (3) ordinarily live in Australia and have done so for 12 months immediately before filing for divorce;
your marriage has broken down irretrievably. This is evidenced by you living separately and apart for no less than 12 months and there being no likelihood of reconciliation;
that proper arrangements have been made for the care, welfare and development of any children of the marriage under 18 years of age. A dispute about living and care arrangements for the children (and whether or not there are proceedings on foot in the Court relating to this issue) will not prevent a divorce order being made.
All of the above matters are addressed in the Form 3 Application for Divorce and you need to ensure that you answer these questions correctly.
Additionally:
you need to prove and corroborate service;
if you are the applicant and there are children of the marriage under 18 years of age, you must ensure that you (or your lawyer if you are legally represented) are personally present at Court on the date of the divorce hearing. Failure to appear may see the Court dismiss your application; and
the address for service for both you and your ex-partner needs to be an Australian address. If you have a lawyer, this will be your lawyers address.
Do I need to prove fault?
No. The Family Law Act 1975 introduced “no-fault” divorce. Since that time, it’s been unnecessary for either party to prove that the other caused the breakdown of the marriage in order to get divorced. The Court is not interested in hearing who did what to cause the breakdown of the relationship.
Prior to 1975, the Matrimonial Causes Act 1959 outlined 14 grounds on which you could obtain a divorce, including adultery, desertion, cruelty, insanity, imprisonment and habitual drunkenness.
How can I keep the divorce process as uncomplicated as possible?
It will significantly reduce your legal costs and make things faster and simpler if you:
both agree to sign a joint application for divorce
know there exact whereabouts of your former spouse so that personal service can be effected. Alternatively, to avoid the need for service, you can file a joint application for divorce;
have been married for over 2 years. If you haven't, you will need to attend counselling, obtain a counselling certificate and/or file further affidavit evidence;
have been living apart (that is, not under the same roof) for a continuous period of 12 months or more immediately preceding your divorce application.
How long will it take to get a divorce?
If there are no complications, it usually takes about 2-4 months from the date you file your divorce application to the date that the divorce order takes effect.
If there are complications, it can take a lot longer. If the complications cannot be adequately addressed to the Courts satisfaction, the Court may dismiss your divorce application.
How much will it cost to get a divorce?
As from 1 July 2023, the Family Court filing fee for a Form 3 Application for divorce is $1,060.
Other costs may include:
cost of obtaining a copy of your Marriage Certificate from the Registry of Births, Deaths & Marriages;
legal costs if you choose to have a lawyer take care of it for you. For an uncomplicated divorce, the legal fees will be approximately $1,100.
Can you take care of the divorce for me?
If you want to get the ball rolling, all you need to do is book an initial phone consult with a family lawyer.
If, after your free phone consult, you want to proceed with the divorce, we’ll let you know next steps. We do everything remotely, by phone and online so you can get everything done from the comfort of your own home.
Our aim is to make this process as simple and pain-free as possible.
