Understanding the divorce process in Australia can help bring clarity as you open a new chapter. Today, there is a no-fault system where the reason for the marriage breakdown is not the deciding factor. Instead, your divorce eligibility depends on whether there is a chance of reconciliation or not. In this article we break down the process as well as important considerations.
What is the eligibility criteria for divorce?
In Australia, you need to be separated for at least 12 months with no chance of reconciliation to be eligible for divorce. If you have still been living under the same roof, you’ll need to provide an affidavit to the court showing how you have been separated during this time. This may include evidence such as sleeping in separate rooms or using separate bank accounts.
In addition, to get a divorce in Queensland, you or your spouse must:
- be an Australian citizen; or
- live in Australia as your permanent home; or
- have lived in Australia for 12 months before you apply for divorce.
If you’ve been married for less than 2 years, you will also need a counselling certificate. This will require you and your spouse to attend a counselling session where you explore reconciliation. If you weren’t able to attend, you may be able to provide an affidavit instead.
Do I need a lawyer to get a divorce?
You don’t legally require a lawyer to get a divorce, however it is recommended in complex cases or where there’s conflict. Complexities include being separated but living under one roof, safety issues such as coercive control or violence, and financial and parenting issues.
What does the divorce process look like?
Understanding the steps involved in the divorce process in Australia helps you know what to expect so you can take the right path. Below is an overview of the main steps, as well as some other important considerations.
Determine if it’s a joint or sole application
The first thing you need to do is decide whether you will complete a joint or sole application. If both spouses agree to the divorce, a joint application can be completed where both parties sign before a qualified witness (Justice of the Peace, lawyer, a Commissioner of Declarations, or a Notary Public).
A sole divorce application is where one spouse files without needing the other to cooperate. That means you can apply without the other spouse agreeing, even if you can’t contact them or if they’re delaying the application.
Register on the Commonwealth Courts Portal
To file for divorce online, you’ll need to register on the Commonwealth Courts Portal. This is a simple process where you fill out your details online to create an account. You will then need to follow the steps to activate your account.
As mentioned above, if there are any factors that complicate your divorce, we’d recommend consulting a lawyer. This will help to ensure the process is smooth and that you get the best possible outcome.
File the application
Once you’ve registered and activated your account, you can start your divorce application. You will need to complete a form, upload any relevant documents such as your marriage certificate and affidavits, and then finalise it.
Serve the application (for sole)
For sole applications where both parties have not agreed, the spouse applying for a divorce will need to serve the papers to the other. This must be done by a third party in one of the following ways:
- Served by hand by someone over 18 (either friend, family member or a professional server)
- Served by post with a signed Acknowledgement of Service (Divorce) form
- Served by a lawyer (if your spouse has a lawyer who has agreed to accept the service)
Once the Divorce application is served to the other spouse, proof of service must be completed and filed with the Federal Circuit and Family Court of Australia. If you’re unable to find your spouse to serve the papers, you can apply for a substituted service. This allows people to still successfully file for divorce even if the other party cannot be located.
Court hearing
A divorce hearing will usually happen electronically with a registrar. The divorce outcome is often determined on the first hearing if it’s straightforward and there will be no need to attend court in person. If anything is missing from your application, there will be time to file the additional items, and you will be given instructions for what to do next.
You only need to attend a divorce hearing if:
- you’ve indicated that you wish to attend
- either party objects to a hearing with the parties absent
- the respondent opposes the application through a Response to divorce
- the other party is unable to be located and an application for an order for substituted service or a dispensation of service is completed.
Divorce finalisation
If your divorce application meets all the requirements, it will become final 1 month and 1 day after the order is made. This date is the actual divorce date, and a copy of the order will be posted to you. You’ll need to keep this paperwork as proof of your divorce for future purposes, such as getting remarried.
Other important divorce considerations
There are some common misconceptions about the divorce process in Australia that are important to know. Certain things such as property, custody, and Wills will need to be treated as a separate matter. We’ve also covered considerations when planning to get remarried below.
Property and custody matters
A divorce does not finalise property arrangements or matters involving custody of children. These are separate processes that must be completed in addition to the divorce process. However, property and custody arrangements can be organised at the same time as divorce proceedings.
It’s important to note that once a divorce is finalised, you have 12 months to apply for property orders. Unlike property matters, there’s not strict time limit for custody orders. They can be applied for after separation and before or after divorce proceedings.
Getting remarried
Another important divorce consideration is that you cannot remarry until the divorce is final. Keep in mind that there can be delays on the final date and it is an offence to remarry while you are already married.
Changing your Will
You’ll need to update your Will for any inheritance that you have included and don’t wish to leave to your ex-spouse. Your Will is not automatically updated when your divorce or separation is finalised, so you’ll need to complete this in addition to divorce paperwork. While it’s not something you might want to think about, if you don’t have a Will and die before your divorce is finalised, your ex-partner can inherit your possessions.
Going through a divorce or separation can be daunting and being prepared can make a big difference. We hope this overview has helped and if you need further advice, get in touch to arrange a free consultation with one of our family lawyers.