Common Questions & Answers

 

Thinking about getting a Divorce In Australia in 2024?

 

You are not alone.

 

Around 50,000 Australian couples obtain a divorce each year. Obtaining a divorce raises many questions about the process and what happens afterwards.

 

This article deals with four very common questions that arise about divorce following separation.

Table of Contents

What Are The Requirements To Getting A Divorce In Australia?

The use of the phrase “getting a divorce” can be a little bit confusing.

 

On the one hand people refer to getting a divorce as meaning the division of assets between a separated married couple.

 

This is more correctly called a property settlement.

 

The term divorce is more correctly a reference to the legal ending of the marriage by way of obtaining a divorce order from the court – in this case the Federal Circuit and Family Court of Australia.

 

Let’s focus on this aspect.

 

To obtain a divorce logically firstly you must be married. Couples who live together in a de facto relationship do not formally need a declaration or order confirming the ending of the relationship.

 

To apply for a divorce a couple must be separated for a period of 12 months. Sometimes, for various reasons, the parties will continue to live under the one roof during this period of separation.

 

If evidence can be provided to the court that the parties have formed the view that the relationship was at end and then acted in a manner consistent with the separation – as examples ending of the intimate relationship, sleeping in separate bedrooms, preparing meals separately and making independent financial arrangements – then a divorce order can still be made.

 

Surviving Separation while living together

Interestingly, if there are periods of reconciliation that do not exceed three months in total over 15 months of separation then the parties can still proceed with the divorce.

 

If reconciliation periods are longer than three months, then the 12-month period of separation must start again.

 

It is important to obtain legal advice if there is any doubt about these timing issues.

 

In a very short marriage, where separation occurs in the first 12 months, if the parties wish to divorce after 12 months of separation but prior to two years expiring from the marriage date, then it is necessary to obtain a counselling certificate.

 

The logic for this requirement is whether the parties have genuinely considered that their separation has brought the relationship/marriage to an end.

 

This may seem a little old-fashioned, but the legislation was written in 1974 and has not changed since.

 

To obtain a divorce you are given the choice whether to file a divorce application jointly or individually.

 

For a joint application both spouses sign the divorce application together at the time of lodging it with the court.

 

If the parties are unable to coordinate or cooperate a joint application, then either party may file an individual application and once filed then provide (or serve) the other party with a copy confirming the hearing date and other details of the marriage.

 

There are very few reasons for a party to object to a divorce application with the most common being that separation has not been for a period of 12 months and the divorce application has been filed too early.

 

In our experience around 3 out of every 4 applications are filed on an individual basis.

 

There are several technical requirements when the divorce application is filed.

 

There is the need to produce a marriage certificate and if it is in a foreign language then an English translation.

 

You must also show that you have jurisdiction to bring the application in Australia.

 

This will usually involve being an Australian Citizen by birth or taking up later citizenship, or alternatively demonstrating that you have lived in Australia for 12 months and intend to continue to live in Australia.

 

Quite commonly we have a query that where parties who live overseas but were married in Australia seek to obtain their divorce in Australia.

 

This is not possible unless one of them is an Australian citizen or one of the parties returns to live in Australia for at least 12 months.

 

It is important if there is any doubt about jurisdiction to get legal advice as to proceeding with the divorce in Australia.

 

If you file an individual application there is a requirement to serve the application on the other party to the marriage.

 

For a detailed explanation on serving an application please read the article HOW TO SERVE DIVORCE PAPERS AUSTRALIA which is linked HERE

How Long Does It Take To Get A Divorce In Australia?

Obtaining a divorce in Australia is a relatively quick process.

 

In a joint application for divorce a hearing date can be obtained in less than six weeks from filing the application.

 

You should allow at least a few weeks to correctly prepare, and file the paperwork needed for the application.

 

For an individual application is important to allow between 10-12 weeks for the application to be heard by the court.

 

The reason for this is that the application must be served on the other party, and this must occur at least 28 days prior to the hearing (or 45 days if the other party is overseas).

 

This timeframe allows the other party to check the application to ensure that is correct and file a document called a Response if there are any issues of dispute – for example the care of children under 18 or the date of separation.

 

Once a divorce hearing occurs the court does not immediately issue the final divorce order.

 

This order will in fact issue one month and one day later – as an example if a divorce hearing was on 15 February, then the final order will issue on 16 March.

 

Why is this the case?

 

The legislation provides for this delay as it gives the parties a final opportunity to reconcile before the marriage is officially at an end.

 

In our experience despite filing thousands of divorce applications we have only withdrawn one or two during this period.

Couple waiting for divorce papers

How Much Does It Cost To Get A Divorce In Australia?

To obtain a divorce in Australia there is a government court filing fee.

 

Up to 30 June 2024 the court filing fee is $1060 unless the applicant, or in the case of a joint application both applicants, hold a healthcare, age pension or concession card and the fee is then reduced considerably to $350.

 

A seniors card is not sufficient to get the reduction.

 

It is also possible to make an application to seek the lower fee of $350 if you are suffering financial hardship – for example if you have recently lost your job and cannot reasonably afford to pay the full filing fee.

 

The application for finance financial hardship is a specific form which must be completed at the time of lodging the divorce application.

 

It is also critical to have the marriage certificate being either the registry or ceremonial copy to be filed when the divorce application is filed.

 

If this document has been irretrievably lost, then a further copy can be ordered usually from the Registry of Births Deaths and Marriages in the State where the marriage occurred.

 

You should allow approximately $70-$80 to obtain another copy.

 

Also, if the marriage certificate requires translation from another language, then there are several translation services in Australia who will undertake this service.

 

Their fee may be between $150-$200.

 

A divorce application when filed by an individual requires service on the other party.

 

Under the court rules, service of the application must initially be attempted either by post or in person, called personal service.

 

If the other party is un-cooperative and will not sign an Acknowledgement of Service when receiving the application by post, then personal service may be the most appropriate option.

 

Usually, a private third-party process server is engaged and depending on the location of the other spouse, service fees can vary from about $250 upwards to $500 in remote locations.

 

Lastly, most common cost incurred in a divorce are solicitor legal fees for assisting to obtain the divorce.

 

Legal firms charge a wide variety of fees depending on their location, the complexity of matters such as service and generally their view as to how long the matter will take.

 

It is important to try and obtain a fixed estimate of these fees, including for any unusual contingencies relating to service of the divorce application, as this will provide you with certainty moving forward.

How Much does a divorce cost

Do I Have To Support My Spouse After A Divorce In Australia?

The issue of property settlement and legal ending of the marriage are separate.

 

There is one broad exception to this, being that if you obtain a divorce then the parties will have 12 months from the final order to have completed their property settlement or have commence proceedings in court to do so.

 

If more than 12 months passes, then the court will need to give permission (or leave) to have a property settlement.

 

This is not easily obtained.

 

For this reason, it is usually the case that most parties have resolved their division of property prior to obtaining their divorce.

 

In relation to the issue of support – technically call spousal maintenance – on an informal basis financial support can continue both before and after a divorce is obtained.

 

If the parties wish to have certainty or are un-cooperative this support can be agreed via a court order that one party will continue to maintain the other.

 

This is commonly the case where there is a significant difference in income and one party may need time to re-establish themselves after separation – for example in undertaking further study or retraining to obtain future more beneficial employment.

 

As with the 12-month rule above, once the divorce order has been made if no application for spousal maintenance has been made to the court, then after the 12 months has expired a formal court order for maintenance will not be able to be made.

 

There are very limited exceptions to this rule.

 

If you are seeking ongoing financial support aside from the division of assets following a separation it is certainly worth considering obtaining a fixed fee appointment with an experienced family law solicitor to ascertain your ability or right to have support provided on an ongoing basis and for what length of time and amount.

 

Finally, a divorce does not impact obligations to pay child support for children of the relationship who remain under 18 years of age.

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Moving Forward

Obtaining a divorce can vary considerably in complexity and with these complexities the length of time to obtain a final divorce order.

 

In our experience, whilst sometimes this may mean a few extra months to obtain the divorce order, provided separation has genuinely been for 12 months, we have always been able to have the divorce order obtained even in circumstances where the spouse is overseas, in prison or a refugee camp, has lost capacity or even where they cannot be located at all.

 

If you would like to look in more depth at the topic of divorce, then please read our article HOW TO DIVORCE IN AUSTRALIA