Australia has a no fault divorce system. This means that the Court is not concerned about why a marriage has ended.
To obtain a divorce the following is required:
- You and your spouse lived separately and apart for a period of at least 12 months and
- There is no likelihood of resumption of marriage and
- You or your spouse regard Australia as home or intend to live in Australia or
- You or your spouse are an Australian citizen or
- You or your spouse have lived in Australia for 12 months prior to filing for divorce
You can make an application for divorce either by yourself or together with your spouse. If you have children under the age of 18, the Court will require that the applicant appears to satisfy the Court that there are arrangements in relation to the children before a divorce is granted.
A divorce order will become absolute after 30 days of it being granted. A divorce is a legal end to your marriage, however, it does not resolve matters surrounding parenting or property matters.
Prior to getting divorced it is important to be aware that time limits start to apply in relation to commencing proceedings for property and spousal maintenance after you are divorced. If you wish to commence proceedings in relation to property and spousal maintenance you must do so within 12 months from the date of divorce. After this time you need to seek the leave of the Court which can be difficult to obtain.
Defacto couples have two years from the date of separation in which to commence proceedings for property and spousal maintenance.
No. We recommend to our client’s that you do not get divorced until you have finalised your property settlement. The reason for this is once you are divorced time limits start to apply in which to file property proceedings with the Court. It is best to apply for your divorce once you have finalised your financial matters.
You can get divorced once you have been separated for 12 months. The actual ground of divorce is the irretrievable breakdown of a marriage, established by the parties having lived separately and apart for a continuous period of 12 months immediately before filing the application.
You can file an Application for Divorce online through the Court portal or we can assist you through the process. If your spouse agrees you are able to file a Joint Application. If you have any unusual circumstances we recommend you obtain assistance with your Application for Divorce.
Once the Application is filed, if it is not a joint application, you then need to attend to personal service on your spouse. You are not able to do this yourself nor are you able to post the application. We usually engage a process server to undertake this task. Once service has occurred documents then need to be filed with the Court proving service.
If you have not filed a joint application and there are children under the age is 18 years – then yes you must attend Court. Otherwise, you need not attend provided you have filed all of the appropriate documents.
- You (and your solicitor) will wait on the Court foyer waiting for your matters to be called
- Once called you will enter the Courtroom and sit at the bar table with your solicitor (if you have one)
- If you have filed all the appropriate documents you interim divorce Order will be made. Occasionally the Judge or Registrar of the Court may ask you some questions. However, if you are legally represented your lawyer will speak on your behalf
Once you have been to Court and an interim Divorce Orders is made the Divorce Order will issue one month and one day thereafter.
It is our advice that you should relook at your Will whenever there is a significant change in your life. Divorce is one of those times. Throughout Australia (except WA) divorce revokes a gift of property or appointment of trusteeship made in a Will in favour of a spouse, in the absence of a contrary intention being made.
A divorce order takes effect one month after it is made, or after a section 55A declaration (whichever is the later). A Certificate of Divorce issues at that time, whereupon the parties can remarry.
Provided you were legally married and have a sufficient connection to Australia – then YES you can get divorced in Australia.
Yes. It is possible for separation to occur under the one roof. The word “separation” does not mean physical separation, but the effective breakdown of the matrimonial relationship.
No you are entitled to change your name back to your maiden name (birth name) at any time.
We recommend you seek legal advice as soon as possible. Sometimes this is even before separation occurs. It is important you know your rights before you make decisions which are going to impact on your financial future and the future of your family.
At BDN we will work with our client’s to formulate a strategy that works for them. This includes offering fixed fees or charging by the hour depending on individual needs.