Navigating the end of a marriage can be a challenging and emotionally taxing experience. If you’re considering divorce in Australia, understanding the legal process can help alleviate some of the stress and uncertainty you may be feeling. At Noosa & Hinterland Family Lawyers, we’ve guided countless individuals through this difficult transition, and we’re here to help you too.
We’ll walk you through the entire divorce process, explaining how to get divorced in Australia, from separation to the finalisation of your divorce. It’s important to note that since 1975, Australia has operated under a no-fault divorce system. This means you don’t need to prove wrongdoing by either party to obtain a divorce; instead, the only ground for divorce is the irretrievable breakdown of the marriage, demonstrated by 12 months of separation.
Please note that the information below is general in nature, for personalised advice tailored to your circumstances, we recommend speaking with one of our experienced family lawyers.
Eligibility & Divorce Law in Australia
Before you can apply for a divorce, you need to meet certain eligibility criteria.
Residency and Citizenship Requirements
To be eligible for divorce in Australia, either you or your spouse must meet at least one of the following criteria:
- You were born in Australia or have become an Australian citizen by descent.
- You’ve been granted Australian citizenship.
- You’re lawfully present in Australia and intend to continue living here (in this case, you must have been living in Australia for at least 12 months).
If you’re currently living overseas, you may still be eligible to apply for a divorce if you meet one of these criteria.
However, you’ll need to provide an address for service in Australia. This could be the address of a family member or friend who is willing to receive documents on your behalf.
The 12-Month Separation Period
One of the key requirements for divorce is that you and your spouse have been separated for at least 12 months and one day. This separation period demonstrates to the court that your marriage has irretrievably broken down.
It’s important to note that you can be “separated under one roof”. This means you and your spouse can still be living in the same home during the separation period. However, if this is the case, you’ll need to provide additional evidence to prove that there has been a change in the marriage.
Marriages Less Than Two Years
If you’ve been married for less than two years, there’s an additional requirement. You’ll need to file a counselling certificate showing that you’ve attended counselling with your spouse to discuss the possibility of reconciliation. If you’re unable to attend counselling with your spouse, you’ll need to file an affidavit explaining why.
The two-year period is calculated from the date of the marriage to the date of applying to the court for a divorce. This requirement is in place to ensure that couples in relatively new marriages have considered the option of reconciliation before proceeding with a divorce.
Step 1: Separation
This crucial first step marks the beginning of the 12-month period required before you can apply for divorce.
What Constitutes Separation?
Separation occurs when at least one partner decides to end the relationship with the intention of divorce. It’s important to understand that separation is more than just physically living apart. It’s about ending the marriage relationship, even if you continue to live under the same roof.
In Australia, you don’t need to file any official paperwork to be considered separated. However, it can be helpful to confirm your separation in writing, perhaps through an email or letter to your spouse. This can be valuable if the date of separation is later contested.
Separation Under One Roof
Interestingly, you can be considered separated even if you continue to live in the same home. This is known as ‘separation under one roof’. While this arrangement can make financial sense for some couples, it does require additional evidence to prove that the marriage has indeed broken down.
If you’re separated under one roof, you’ll need to demonstrate that you’re living separate lives. This might include sleeping in separate bedrooms, cooking your own meals, and managing your finances independently. Your ex-partner and a supporting witness will need to provide affidavits confirming these arrangements.
Important Actions to Take After Separation
The end of a relationship is undoubtedly stressful, but there are several practical steps you should take to protect yourself financially and legally:
- Document Your Assets and Debts: Including those in your name, your partner’s name, and joint names.
- Secure Your Finances: Consider blocking joint bank accounts and credit cards to prevent unauthorised transactions. Ensure your income is directed to an account only you can access.
- Share Financial Responsibilities: Make arrangements to ensure you’re not solely responsible for mortgage payments, car loans, or utility bills.
- Gather Important Documents: Collect copies of tax returns, bank statements, superannuation accounts, and other financial records.
- Update Your Will: If you haven’t already, write a will. If you have one, update it to reflect your new circumstances.
- Create a Budget: Assess your new financial situation and set a realistic budget for your changed circumstances.
Taking these steps early can help you navigate the separation period more smoothly and set you up for the next stages of the divorce process.
Step 2: Financial Settlement
This involves dividing your assets and liabilities, and potentially addressing ongoing financial commitments. This step includes the following:
Understanding Separation Agreements
This is a document that outlines how you and your ex-partner have agreed to divide your financial assets and ongoing obligations. This agreement can be made at any time after separation, even before you apply for divorce.
The beauty of a Separation Agreement in the cases that is possible to agree is its flexibility and privacy. It doesn’t require court intervention or approval, which means it can be a quicker, less stressful, and more amicable way to settle your financial matters. It also remains confidential between you and your ex-partner.
Dealing with Superannuation
Superannuation is often one of the largest assets in a marriage, and it’s treated as property under Australian family law. This means it can be split between partners as part of a divorce settlement.
If you’re dealing with significant superannuation assets, particularly if they’re primarily in one partner’s name, you might need to create a separate Binding Superannuation Agreement. This agreement should be attached to your main Separation Agreement.
Spousal Maintenance
As part of your financial settlement, you might need to consider spousal maintenance. This is a payment made by one ex-partner to the other to help cover living expenses when they’re unable to support themselves financially. It’s important to note that spousal maintenance is separate from child support and isn’t an automatic right – the person seeking it needs to prove they can’t adequately support themselves.
What If We Can’t Agree?
While it’s always preferable to reach an amicable agreement, sometimes that’s not possible. If you and your ex-partner can’t agree on how to divide your assets, you may need to apply to the court for a financial order. This process typically involves:
- Attempting mediation through the Family Dispute Resolution Service
- If mediation fails, one partner initiates the court process by filing an application
- Both parties disclose financial documentation
- The court attempts to negotiate a settlement
- If no settlement is reached, the case proceeds to trial where a judge makes the final decision
At Noosa & Hinterland Family Lawyers, we always encourage couples to try to reach an agreement outside of court if possible. It’s typically faster, less expensive, and less stressful. However, we’re also experienced in representing clients through the court process when necessary.
Remember, you have 12 months from the date your divorce becomes final to seek property orders from the court. After this time, you’ll need special permission from the court to apply, so it’s best to address these matters as soon as possible.
Step 3: Parenting Arrangements
When you’re going through a divorce and have children under 18, one of the most important aspects to consider is how you’ll continue to care for and support your children.
In Australia, the law focuses on the best interests of the children, encouraging parents to work together in raising their children even after separation. Key elements of parenting arrangements include:
Parenting Plans
A Parenting Plan is a written agreement that outlines how you and your ex-partner will care for your children. It covers aspects such as where the children will live and how much time they’ll spend with each parent.
While not legally enforceable, a Parenting Plan can be a flexible and cooperative way to manage your co-parenting relationship. It can be changed over time as your circumstances or your children’s needs evolve, provided both parents agree.
Remember, every family is unique, so your Parenting Plan should reflect your specific situation and your children’s needs.
Child Support Agreements
Alongside deciding on care arrangements, you’ll need to address the financial support of your children.
In Australia, we have a Child Support Scheme that provides a formula for calculating child support payments. However, you and your ex-partner can also create your own Child Support Agreement.
There are two types of Child Support Agreements:
- Limited Child Support Agreements: These follow the basic child support formula and can be registered with the Department of Human Services without legal advice.
- Binding Child Support Agreements: These allow for arrangements outside the standard formula but require both parties to obtain independent legal advice before signing.
Both types of agreements need to be registered with the Department of Human Services to be enforceable.
Family Dispute Resolution
If you’re struggling to reach an agreement about parenting arrangements or child support, the next step is usually to attempt Family Dispute Resolution (FDR). This is a form of mediation specifically designed to help separated parents make decisions about their children.
In fact, unless there are exceptional circumstances (such as family violence), you’re required to attempt FDR before you can apply to the court for parenting orders. This process encourages open communication and aims to find mutually agreeable solutions with the help of an impartial mediator.
At Noosa & Hinterland Family Lawyers, we have accredited Family Dispute Resolution Practitioners who can guide you through this process.
When Court Intervention is Necessary
While we always encourage parents to reach agreements outside of court, sometimes court intervention is necessary. This might be the case if:
- You can’t reach an agreement through mediation
- There are safety concerns for you or your children
- One parent isn’t following the existing agreement
If you need to go to court for parenting matters, we can represent you and advocate for your children’s best interests. Our experienced lawyers will guide you through the process, helping you understand your rights and obligations every step of the way.
Step 4: Applying for Divorce
After you’ve been separated for at least 12 months and one day, and you’ve sorted out your financial and parenting arrangements, you’re ready to formally apply for divorce.
Also, automatic divorce after a long separation does not apply in Australia, even if you’ve been separated for many years, you will still need to lodge a formal divorce application.
The key aspects of applying for a divorce include:
Joint vs Sole Applications
You can apply for divorce either jointly with your ex-partner or on your own as a sole applicant. If you’re on amicable terms and can agree on the details, a joint application can be a smoother process. In a joint application, you’re both considered applicants, and neither party needs to serve documents on the other.
If you’re applying on your own, you’ll be the applicant, and your ex-partner will be the respondent. In this case, you’ll need to serve the divorce application on your ex-partner after filing.
Required Documentation
To apply for divorce, you’ll need to gather several important documents:
- Your marriage certificate
- Proof of citizenship or residency in Australia (such as a passport or visa)
- A counselling certificate if you’ve been married less than two years
If you can’t locate your marriage certificate, you’ll need to order a copy from the Registry of Births, Deaths and Marriages in the state or territory where you were married.
Filing Through the Commonwealth Courts Portal
In Australia, divorce applications are now filed electronically through the Commonwealth Courts Portal. This online system allows you to submit your application, pay the filing fee, and access court orders 24/7. Here’s a brief overview of the process:
- Register for the Commonwealth Courts Portal
- Start a new application for divorce
- Complete the online form, providing details about your marriage, separation, and any children
- Upload required documents
- Pay the filing fee
- Submit your application
The current cost of a divorce filing in Australia is $1,100, but you may be eligible for a reduced fee of $365 if you hold certain government concession cards or can demonstrate financial hardship.
If you’re not sure how to complete this process or need some advice please contact us.
Serving Divorce Papers (for Sole Applications)
If you’ve filed a sole application, you’ll need to serve the divorce papers on your ex-partner. This can be done by hand, by post, or in some cases, electronically. Your ex-partner must receive these documents at least 28 days before the hearing if they’re in Australia, or 42 days if they’re overseas.
If you’re unable to locate your ex-partner to serve the documents, you may need to apply to the court for substituted service or dispensation of service. This is a complex area, and it’s often helpful to seek legal advice in these situations.
Proving Service
Once you’ve served the divorce papers, you need to prove to the court that service has occurred. This typically involves filing one or more of the following documents:
- Affidavit of Service by Hand
- Affidavit of Service by Post
- Acknowledgment of Service (signed by your ex-partner)
- Affidavit Proving Signature (if using an Acknowledgment of Service)
These forms provide evidence to the court that your ex-partner has received the divorce application.
At Noosa & Hinterland Family Lawyers, we understand that serving divorce papers can be a stressful part of the process, especially if you’re unsure of your ex-partner’s location or if the relationship is contentious. Our experienced team can guide you through this process, ensuring that service is carried out correctly and in compliance with all legal requirements.
Court Hearings
Not everyone needs to attend a court hearing for their divorce. You must attend if:
- You’ve filed a sole application and there are children under 18
- You’ve requested to attend in your application
- Your ex-partner has filed a Response to Divorce opposing the application
If you do need to attend, don’t worry – most divorce hearings are now held electronically so you can participate via telephone.
If you’ve filed a joint application, neither party typically needs to attend the hearing.
What to Expect at the Hearing
The court will review your application to ensure all requirements have been met. If you have children under 18, the court will want to confirm that proper arrangements have been made for their care.
If everything is in order, the court will grant the divorce on the spot. The divorce will then become final one month and one day later, unless the court makes a special order to shorten this time.
Noosa & Hinterland Family Lawyers can help you prepare for your hearing and even attend with you if needed. Our goal is to make this final step in your divorce process as smooth and stress-free as possible.
Finalising Your Divorce
After all the paperwork, waiting, and potentially a court hearing, you’re now in the final stretch of the divorce process.
The One Month Waiting Period
When the court grants your divorce, it doesn’t become final immediately. There’s a mandatory waiting period of one month and one day. This period allows for any appeal to be lodged if either party believes there are grounds to challenge the divorce.
During this time, it’s crucial to remember that you’re still legally married. This means you can’t remarry until after this period has elapsed and your divorce has become final.
Obtaining Your Divorce Order
Once the waiting period is over, your divorce becomes final, and you can obtain your divorce order. Here’s how:
- Log into the Commonwealth Courts Portal (the same system you used to file your application).
- Navigate to the ‘Orders’ section of your file.
- Download and print your divorce order.
It’s a good idea to print several copies of your divorce order and store them safely. You may need them in the future for various legal or administrative purposes.
The divorce order is an important legal document. It has an electronic seal and signature, making it an original and official record of your divorce. This is the only version the court issues, so treat it as you would any other important legal document.
A Note on Timing
Remember, you can set up email notifications in the Commonwealth Courts Portal to alert you when your divorce has been granted. This can help you keep track of the process without constantly checking the portal.
At Noosa & Hinterland Family Lawyers, we understand that finalising your divorce is a significant moment. While it may bring a range of emotions, it also represents the start of a new chapter in your life. If you need any assistance with obtaining or understanding your divorce order, or if you have questions about what comes next, we’re here to help. Our team can provide the support and guidance you need to move forward with confidence.
Special Circumstances
While we’ve covered the standard divorce process, it’s important to acknowledge that every situation is unique. Let’s briefly explore some special circumstances that might apply to your divorce.
International Marriages and Divorces
If you were married overseas, you can still get divorced in Australia, provided you or your spouse meet the residency requirements. You’ll need to provide your foreign marriage certificate, and if it’s not in English, a certified translation.
For those living abroad, you may be able to apply for an Australian divorce if you’re an Australian citizen or have been living in Australia for at least a year before filing. However, you’ll need to provide an Australian address for service.
Name Changes
If you’ve changed your name since getting married, you’ll need to file an affidavit explaining the change. This should include supporting documentation, such as a change of name certificate.
Opposing a Divorce Application
There are some situations where one party might want to oppose the divorce. The grounds for this are limited – typically, you can only oppose if you dispute that you’ve been separated for 12 months or if you believe the court doesn’t have jurisdiction.
If you’re in this situation, you’ll need to file a Response to Divorce within 28 days of receiving the application. It’s crucial to seek legal advice promptly if you’re considering this step.
At Noosa & Hinterland Family Lawyers, we’re experienced in handling a wide range of divorce scenarios, including these special circumstances.
Legal Support and Advice
Navigating a divorce can be complex, and while this guide provides a comprehensive overview, it’s no substitute for personalised legal advice. At Noosa & Hinterland Family Lawyers, we believe that professional guidance can make a significant difference in your divorce journey.
Why Seek Legal Advice?
Every divorce is unique, and the law can be intricate. A skilled family lawyer can:
- Help you understand your rights and obligations
- Ensure you’re aware of all your options
- Guide you through complex paperwork
- Represent your interests in negotiations or court
- Help you avoid costly mistakes
Our Services at Noosa & Hinterland Family Lawyers
With over 70 years of combined experience, our team offers expert guidance on all aspects of family law. We specialise in:
- Divorce applications
- Property settlements
- Parenting arrangements
- Child support agreements
- Family dispute resolution
Led by Jane McCarthy, a Family Lawyer and Family Dispute Resolution Practitioner with over a decade of experience, our team is committed to helping you move forward positively after separation..
Navigating the Path Forward
We understand that divorce is more than just a legal process – it’s a significant life change. That’s why we offer not just legal expertise, but also empathy and support. Our goal is to help you navigate this challenging time with confidence and emerge ready for your new chapter
If you have any questions about your specific situation or need assistance with any aspect of divorce law in Australia, don’t hesitate to book a free consultation at Noosa & Hinterland Family Lawyers. We’re committed to helping you achieve the best possible outcome.
