How To Divorce In Australia
How to Divorce in Australia
Divorce is a difficult process, regardless of where you live. The process of how to divorce in Australia can feel complicated and overwhelming. This comprehensive guide will provide you with all the information you need to obtain a divorce in Australia. We will cover topics as to eligibility to obtain a divorce, getting a divorce underway, the steps to your hearing, and more.
What is an Online Divorce?
The ‘Online’ part of the divorce refers to two main things:-
- All (or nearly all) of the things done to undertake the divorce are done electronically; using email, Court lodgement portals and the like; and
- The divorce hearing itself does not require personal attendance by you or your solicitor. In 2021 divorce hearings involving children are usually undertaken by telephonic web conference and joint divorce hearings are usually determined by the Court ‘on the papers’ which means without the need for you or your solicitor to attend.
Are Online Divorce Providers Legitimate and Safe?
There are generally two types of online divorce providers. These are:-
- Non legal form & guide providers – These providers “promise” to complete the Divorce Application form and send it to you with a step by step guide. They cannot assist in serving the Divorce Application or in appearing before the Court as needed to obtain a divorce Order; and
- Legal providers (law firms) who operate wholly online or offer some form of ‘online service’. Law firms are insured, have solicitors to supervise the work and would be regarded as legitimate and safe.
There are of course many ‘bricks and mortar’ family lawyers who will do your divorce. In considering using these legal providers you should weigh up the issues of convenience and the extra cost (usually) of engaging them.
We have a great blog article on the 7 steps you can take to be best prepared for Divorce.
You can read that HERE
Firstly- What is the Divorce Application
The Divorce Application is the major document filed with the Court (Federal Circuit and Family Court of Australia or FCFCA) which sets out details of the marriage and importantly separation and what happened afterwards – for example did the parties live separately or under the one roof for any period of time.
It is lodged electronically through the Court ‘Portal’ together with the marriage certificate and other supporting documents as needed.
How long to fill out the Online Divorce Application?
The team at Your Divorce will complete the Divorce Application and lodge it on your behalf.
This saves considerable time trying to do this yourself.
You should allow about 15 minutes to complete our Your Divorce Online Questionnaire to get the ball rolling.
How much does it cost to do a divorce online?
Court fees and other outlays
To obtain a divorce there are costs which will be incurred.
The compulsory government filing fee currently is $990 unless you hold a healthcare or other concession card where the fee is reduced to $330.
If you need to order your marriage certificate the cost of this is around $70.
A cost will be incurred in the event a process server is required to serve the Divorce Application.
You should budget around $250 if this is the case.
If your former spouse’s location is unknown or uncertain a ‘trace’ search may be needed.
This costs about $100.
If your spouse is overseas postage for a trackable registered post may be required.
This will be about $20-35.
Your Divorce always advises which of these costs may be applicable and tries to minimise them.
A ‘bricks and mortar’ solicitor will in our experience charges legal fees from $1500 to over $2000 to undertake the divorce process.
As an online provider, Your Divorce charges a flat legal fee of $770 or $880 if the parties were living under the one roof in the 12 months prior to the Divorce Application (2 separate extra affidavits are then needed to be prepared, signed and filed with the Court).
What is the difference between a Joint and an Individual Divorce Application?
If you and your spouse agree on the terms of your divorce, you can make a joint application to the Court.
This means you will both need to sign the Divorce Application and supporting documents.
About 20% of divorce applications are filed jointly.
If you and your spouse do not agree on the terms of your divorce or if one party is reluctant to proceed, you can make an individual Divorce Application.
This means that only one of you will need to sign the Divorce Application and supporting documents.
You will then need to serve your spouse with the application.
This means you can get a divorce without the other party signing the initial paperwork.
What is the difference between a divorce and an annulment?
A divorce is when the Court legally ends your marriage due to the parties’ separation for more than 12 months.
An annulment is when the court decides that your marriage was never valid because of certain reasons such as:
-if you were under 18 years old when you got married, unless you obtained parental or guardian consent or a court order
-if you were already married to someone else at the time of your current marriage
-if your marriage was entered into as a result of fraud, duress or mistake. As an example if one party falsely claims they are ‘A Royal Prince’ when they are not.
Let’s now explain matters concerning the children of the relationship
Care Welfare and Development
If you have children under 18 at the time of filing for divorce, the Court must be satisfied that proper arrangements have been made for their care, welfare and development before it will grant the divorce.
Is Paperwork regarding children needed?
You do not need to file any documents regarding your children when applying for a divorce, but you will be asked to provide details of arrangements that have been made for their care and welfare.
The children’s information needed includes:
Full names of each child
Dates of birth
Where and with whom they live
Whether they go to school or daycare and what school level (year) they are attending and generally how they are progressing at school
Their health and any special needs they may have
How they are financially supported – by which party or how is support shared between the parties
Children now over 18 ?
If you have children aged over 18, they do not need to be mentioned in the divorce application.
A commonly asked question: Once I’ve completed the Divorce Application Form, how long before I get my divorce?
Once a Divorce Application is fully completed including the children’s details it can be lodged with the Court.
After signing by the person applying or both parties if a joint application.
This is usually done electronically through the Court’s “Portal” where all documents are electronically filed.
When filed a hearing date is noted on the Application and advised to the lodger.
When is the Hearing ?
The hearing date is generally about 10-16 weeks after the Application is filed.
This to allow the Application to be served on the other party in an individual Application.
The Application must be served at least 28 days before the Hearing or 42 days before the Hearing if the former spouse is living overseas.
This timeframe allows the other party to raise any issues about the accuracy of the Application by filing a “Response” document with the Court.
The most common areas raised in a Response relate to when separation occurred and the children’s care arrangements/financial support.
In a joint Divorce Application the hearing date is usually a little quicker as service of the Application is not required.
How is the Divorce Application Served?
Service of the Divorce Application can be the most complex task in getting a divorce.
The Court requires that a Divorce Application is served on the other party unless it is a joint Divorce Application which is where both parties sign the Application initially.
How is service undertaken
The Court requires services either occur by post or by personally handing the Divorce Application to the other party.
The Applicant can not hand or serve the documents to the other side.
A third party or process server usually will arrange/undertake the personal service.
If the documents are posted then the other party must sign an Acknowledgment of Service and return it to show they have received the Application.
This is then filed with the Court along with a further document, being an affidavit, confirming the signature on the Acknowledgment is actually by the other party.
Are there variations to how service is undertaken?
If personal or posted service cannot be undertaken due to lack of knowledge of the other parties’ location or their lack of co-operation then the Court can give permission to serve the Divorce Application in another way.
We have seen this occur by
Giving the Application to another family member who will pass the Application to them, OR
Dispensing with service, not requiring it at ALL!
There will be extra time, paperwork and potentially expense in varying service AND its important you get the right advice early as to the best option available.
The next step covers what occurs at the divorce hearing and afterwards
Firstly, The Divorce Hearing
At the divorce hearing, the Court will grant a divorce order if it is satisfied that:
You and your former spouse have been separated for at least 12 months; and
There is no reasonable likelihood of resuming married life.
You will not need to personally attend the hearing.
They are now conducted by a telephone weblink.
Secondly, when does the final Divorce Certificate issue?
The final Divorce Certificate will be issued one month and one day after the hearing.
Oddly if the divorce occurs on the 30th of April, June, September or November, rather than being issued on the 31st of the next month, it issues on the first day of the month after, being June, August, November and January respectively.
Finally, when can re-marriage take place?
Once the divorce certificate issues, you are free to remarry.
Some Final Hints and Tips
A Divorce Application can involve multiple parties – yourself to file the application, your former spouse, the children and sometimes third parties such as a process server or other family members.
It is important the best and correct information is gathered initially to speed up the process and any questions of your lawyer are answered to get the best service.
Organising or reserving funds for the court filing fee and other costs is an important step in planning your divorce.
Parties must be separated for 12 months prior to applying for a divorce.
Sometimes parties do get back together after initially separating.
If this exceeds 3 months, in total, over a 15 month period following separation than the 12 month separation period will have to start again from the time the last reconciliation ended.
If this may apply to you then getting advice is a good idea.
Do I have to be an Australia Citizen or Living in Australia to apply for Divorce?
To apply for divorce in Australia you or your spouse:
Can be an Australian Citizen by birth/descent
Have become an Australian Citizen by citizenship application
Ordinarily lived in Australia and have done so for 12 months prior to the Application
Regard Australia as home and intend to live in Australia indefinitely
If any of the above apply to you or your former spouse then you are able to proceed with the Application.
If you are an Australian Citizen living overseas you can still apply for your divorce in Australia.
Hopefully this has answered your questions on How To Divorce Australia.
The Team at Your Divorce are Australia’s number one divorce provider. We believe there are a number of reasons for this including
We treat each client with kindness and empathy
We are true experts in obtaining your divorce in a safe and timely manner
We offer excellent value for money
We are online and available at your convenience
To take the next step or to simply make an enquiry contact the team at Your Divorce by the following methods
Email us at email@example.com
Leave us a telephone message on 1300 531 137
Complete our online Application and we will contact you, at no financial obligation, to discuss your individual circumstances
We look forward to being of assistance.