Divorce is the formal ending of a marriage. It is distinct from separation, which refers to the breakdown of a marriage. It is an important legal process.
Australia has a no-fault divorce system. This means that unlike some countries where you have to state specific reasons why the marriage should come to an end (i.e. infidelity), in Australia you only need to establish that your marriage has irretrievably broken down and there is no reasonable chance of you and your spouse getting back together. This is evidenced by you being separated for at least 12 months. You can be separated but living under the same roof during part or all of the required 12-month separation period.
Who can apply for divorce in Australia?
You do not need to have been married in Australia to be eligible to apply for divorce in the Federal Circuit and Family Court of Australia (“the Court”). To be eligible to apply for divorce in Australia, in addition to meeting the requirement of having been separated for 12 months, either you or your spouse must meet one of the following criteria:
- be an Australian citizen;
- live in Australia and consider it to be your permanent home; or
- normally live in Australia and have lived here for at least 12 months before applying for divorce.
Does my Spouse need to be informed that I am getting a Divorce?
In Australia, you do not need the consent of your spouse to get a divorce. Divorce applications can be filed with the Court either as sole (i.e. individual) or joint applications. Again, the main thing is that you can demonstrate to the Court that you have been separated for at least 12 months.
Unless you are making the divorce application together, you must make sure that your spouse receives a sealed copy of your application. This process is called ‘effecting service’ and, in divorce proceedings must be done either in person or by post.
If your spouse is evading service or if you do not know where they reside, the Court can order that someone else is served with your divorce application (i.e. their parent whom they are in contact with etc.).
The Court can also order that your spouse be served via their email address or social media account. To apply for substituted service, a separate application, called an Application in a Proceeding must be filed with the Court. This can be a complicated process.
Do I need to go to Court?
If you are doing a sole application for divorce and you and your spouse have children under the age of 18 years that were part of the family before separation, you must go to Court. Before granting the divorce application, the Court must also be satisfied that proper arrangements have been made for your children.
These arrangements include, but are not limited to, who they live with/spend time with, their education, their health, and how they are financially supported.
Is Divorce the Same as a Property Settlement?
It is important to note that divorce is simply a formal recognition that the marriage has ended. It does not determine issues in respect of a property settlement. Divorce is its own legal process, completely distinct from obtaining a property settlement. You do not need to be divorced before you can apply for a property settlement.
Once your divorce is made final however, you have 12 months to initiate property settlement proceedings, otherwise you will be deemed to be out of time and will need to apply to the Court for special leave.
When does my Divorce Order take effect?
Once your divorce application is received by the Court, a divorce hearing date will be allocated by the Court. Whether you are required to attend or not will be dependent on whether you have children under 18 and are making the application on your own. Of course, you are always permitted to attend the hearing if you so wish.
If you are not required to attend the hearing, the Court will review your application and if satisfied that all the requirements have been met (i.e. you are eligible to apply for divorce in Australia, you have been separated for at least 12 months and your spouse has received a copy of your stamped application) will grant a Divorce Order.
After the granting of the Divorce Order, your divorce will automatically become final after one month and one day. Until then, you are still technically married.
How can Swan Family Lawyers assist me?
Going through a divorce can be challenging. At Swan Family Lawyers we are here to help and to make an important legal process as simple and stress free as possible.
iDivorce is Swan Family Lawyers’ online divorce service. All you need to do is complete the form and one of our family lawyers will contact you to complete the process. Our fixed fee online divorce is easy, cost efficient and will save you time. Click here to commence the process.