Essential Guide To Divorce in Australia

Divorce - ready to break

Divorce is hard.

The breakdown of any relationship is stressful and can result in financial hardship, while taking a heavy toll on your mental and physical state. 

Divorce becomes more scary and complicated when children are involved, or assets are tied up in property and businesses. 

That’s why a good family lawyer can give you the guidance and support you need to navigate through an often heated and complicated divorce process.

According to the Australian Bureau of Statistics:

  • There were 49,116 divorces granted in Australia in 2019. 
  • This represented a crude divorce rate of 1.9 divorces per 1,000 estimated resident population. 
  • The divorce rate has decreased over time.
    It was 2.8 divorces granted per 1,000 persons in 1999. 

Grounds for divorce

The Family Law Act 1975 formed the principle of no-fault divorce in Australian law.  Before that, Australians had to provide a reason for the breakdown of a marriage. 

When granting a divorce today, the Family Court does not consider why the marriage ended and the only ground for divorce is that the marriage has irretrievably broken down and there is no reasonable likelihood that the parties will get back together. 

The divorce process in Australia

To file an application for divorce and succeed with that application, you need to satisfy the court that you and your spouse have lived separately and apart for at least 12 months, and there is no reasonable chance of resuming married life. It is possible to live together in the same home and still be separated.

Record the date you separated from your partner and communicate your decision, where appropriate, to friends and family.

Bear in mind, if you make attempts at reconciliation, or properly reconcile during the separation period, any periods of reconciliation will not count towards the 12-month period you have to wait before filing an application and, in some cases, the clock may revert to zero and you’ll have to re-start the process all over again.

In many cases, after you have separated, the first step is to engage the services of a family lawyer. You can go it alone, with a DIY divorce, but when you consider everything involved, it’s best to have guidance and support throughout the process – that’s where an accredited and experienced family lawyer can help you. 

Next step is to complete and swear or affirm your Application for Divorce form in the presence of a lawyer or a Justice of the Peace. You’ll also need to include a copy of your marriage certificate. 

In addition, in the event that you’ve been married to your partner for less than two years, then you’ll need to provide a counselling certificate when you file for divorce. 

This can all be done online via the Commonwealth Courts Portal.

You’ll then receive a file number from the Court and a time and date for the hearing.

The divorce hearing can take approximately 4-8 weeks after the divorce application is filed (depending on the Court’s schedule).

The divorce is usually finalised one month and one day after a divorce is granted at the hearing.

Divorce complications

The granting of a divorce does not deal with issues about property, or make formal parenting orders. These must be dealt with separately to the divorce application. Decisions about property and custody issues can be done any time after separation. For property, you have 12 months from when the divorce has been granted to file an application with the Court, if you wish to do so.

Children

The law focuses on the rights of children to have an ongoing relationship with both parents. This means that separating from your spouse or partner doesn’t mean that you are separating from your child or children.

A lawyer can advise you in relation to the complexities of your specific situation as well as guide you through what can be a stressful and confusing process.

Property

Always engage a lawyer to sort out any property disputes – who pays the mortgage, how property is divided, etc. There are two ways to make a property settlement legally binding:

  • the making of Orders by the Family Court of Australia or Federal Circuit Court of Australia (which can be by consent if everyone agrees); and
  • entering into a Binding Financial Agreement – this can only be done with lawyers advising both parties independently.

It is important to keep in mind that ‘property’ also includes things like businesses and superannuation.

Dividing up a business can be tricky during a divorce. Sometimes, it’s best for one partner to pull out to preserve the future of the business. In most cases, a lawyer can help you navigate the best course when a business is involved in divorce proceedings.

Divorced women with children had 37% less super than divorced dads from similar age groups and socio-economic backgrounds, and 68% less super than married mums. Superannuation is treated as a special type of property under family law – it’s an asset that is held in trust until you have met a condition of release

Super can’t be split as cash unless you have already met a condition of release.

Spousal maintenance

Spouse maintenance is financial support paid by a party to a marriage to their former husband or wife in circumstances where they are unable to adequately support themselves.  There are no limits to how long a spousal maintenance order can last. 

Wills

Divorce affects your Will, but it does so differently in each state and territory. In some jurisdictions, divorce will automatically render your Will invalid. Talk with your lawyer about updating your Will.

Useful links

FAQ about divorce in Australia

How much does a divorce cost?

There is a filing fee for divorce applications. To apply for a divorce you need to complete the online interactive Application for Divorce and pay the filing fee. The filing fee that is payable at the time of filing is $930 (or $310 if you qualify for the reduced fee, usually by holding a government pension, health care or similar card). Lawyer fees are separate to this process.

Can I oppose a divorce application?

If you do not want the divorce granted, you must complete and file a Response to Divorce and appear in person on the hearing date. You need to set out the grounds on which you seek the dismissal in the Response to Divorce. You need to file it:

  • if served in Australia – within 28 days of the application being served on you, or
  • if served outside of Australia – within 42 days of the application being served on you.

How long does the divorce process take?

Assuming you’ve been legally separated for 12 months, it can take at least four months to obtain a final Divorce Order, longer if there are difficulties in serving your spouse. Please do not plan a remarriage without allowing enough time for the divorce to be finalised (or you’ll be a bigamist). This time is calculated using the date you first filed your application in court until the date when a divorce order is issued by the court.

Divorce vs annulment: what’s the legal difference?

Here’s when an annulment of a marriage is appropriate: when one of the married parties is still legally married to someone else; when the parties are in a prohibited relationship (eg father/daughter); when the parties failed to comply with the legal requirements of the marriage; if either party was underage at the time; if the consent to marry was not real consent (eg fraud, mistaken identity). In all other circumstances, a divorce is the correct course of action. An annulment cannot be filed on the grounds of non-consummation of marriage, family violence or never having lived together.

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