Divorce in Australia - Process, How Long, Who Gets What and Attending Court

Divorce in Australia


 

Getting divorced in Australia is relatively straightforward, but there are a lot of places where you can go wrong if you do not engage a lawyer who specialises in family law to assist you.

The steps to getting divorced in Australia are:

  1. Be separated for at least one year – if you have already been separated for at least one year, go to the next step. If you are separated but still living under one roof, you will need to complete an Affidavit setting out the circumstances of your separation. Your spouse OR another independent person will also need to complete an Affidavit;
  2. Find a copy of your Marriage Certificate – if you don’t have one, you can apply to your local state registry for a copy if you married in Australia. If you married overseas and don’t have a copy you should contact that country’s embassy to ask how you can apply for a copy of your Marriage Certificate.
  3. Fill out an Application for Divorce – this is form which sets out information about you and your spouse, and if you have any, your children;
  4. Sign the Application for Divorce in front of a lawyer or justice of the peace – we can witness this for you if you are our client;
  5. File the Application for Divorce with the Court, and attach your marriage certificate. If you have any, you should also attach any Court Orders or legally binding documents you have with your spouse in relation to property settlement, the children, child support, family violence, spousal maintenance or other family law documents;
  6. Wait for your hearing date or attend your hearing – this is usually 2-4 months from the date you filed your application. You or your lawyer will find out on the day of your hearing if your divorce was successfully granted;
  7. Receive your Divorce Orders – you will receive a copy of your Divorce Orders one month and one day from the date of your hearing. This is when you will be “officially divorced” and can remarry if you want to.

Can I get divorced in Australia if my husband or wife does not agree?

In Australia, you do not need a “reason” or the agreement of your husband or wife to get divorced.

However, the process is much more straightforward if they agree to apply for divorce with you.

Broadly, there are two ways to apply for divorce:

  1. Joint Application for Divorce – both of you sign and agree to the divorce;
  2. Sole Application for Divorce – only you sign and apply for the divorce.

If you apply for a sole Application for Divorce you will need to formally serve your Application for Divorce and other attached documents on your spouse. We generally suggest that our clients use a professional process server for this purpose, and engage one on our client’s behalf for this purpose.

You could also ask a friend or family member to serve your spouse.

You can also can serve your spouse via post. However, we only recommend this if you are sure that they will sign the Acknowledgement of Service and send their signed document back to us.

How long does it take to get divorced in Australia?

From the date of filing your divorce application with the Court, you will generally be officially divorced within three to four months.

Do I need to attend Court to finalise my Divorce?

Generally, no. You will only need to attend Court if you are filing a sole application and have children under the age of 18. In some rare circumstances, we may also recommend you attend Court. We can also attend Court on your behalf, so you don’t need to attend if you don’t want to.

Can I get divorced in Australia if I got married overseas?

You can apply for a divorce in Australia if either you OR your spouse are:

  1. An Australian citizen;
  2. Usually live in Australia and have lived in Australia for the last 12 months;
  3. Regard Australia as your home and intend to live in Australia indefinitely (e.g. if you are an Australian Permanent Resident).

You will need to provide some extra documents proving your right to live in Australia if you were not an Australian citizen by birth. If you are a citizen by grant of citizenship, you will need to provide a copy of your passport or citizenship certificate. If you are a permanent resident, you will need to provide a copy of your passport and visa.

What’s an Affidavit and why do I need it?

An Affidavit is a written document that you swear or affirm is true. It is used as evidence in Court. If in the last year, you and your spouse have been separated but living together under one roof, you will need to prove that you have been separated with your spouse by writing an Affidavit setting out:

  1. When you separated, and the circumstances behind your separation;
  2. How you now manage your household and finances;
  3. Whether you socialise together as a couple;
  4. When you stopped being intimate;
  5. Whether you now sleep in separate bedrooms and how you use your shared common areas; and
  6. Any documents you have submitted to any government department to say that either of you are separated.

We are able to assist you with writing Affidavits for the purposes of proving your separation.

If you would like a lawyer to sort your divorce out for you, please fill out our online form to get started.

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