Considering A Divorce? We Have Answered Some Frequently Asked Questions
What is divorce?
In Australia, divorce occurs when a marriage is legally ended by the Family Court. It essentially ‘un-marries’ you and your ex, meaning your marital status is ‘single’, and either of you can get re-married if you choose.
What is a “legal separation”?
In Australia, there is no such thing as a “legal separation”. You are either separated or not, and you are either divorced or not, but there is no law in Australia that confers the status of being “legally separated”.
What do I have to prove to get a divorce?
You have to prove a few things for divorce.
- First, you have to be married. This is usually easy to prove if you have the original, or a certified copy, of an Australian marriage certificate. If you were married overseas or went through a ‘form or ceremony of marriage’ that wasn’t registered with an Australian registry of births, deaths and marriages, then you may need additional documents and evidence.
- The marriage has to be one that Australian law recognises. Australian law recognises a variety of marriages whether religious or civil, including:
(a) same-sex marriages;
(b) the first marriage in a polygamous marriage.
Australian law doesn’t recognise marriages where one or both people:
(a) were forced into it;
(b) didn’t understand that they were getting married, or
(c) were too young at the time of the ceremony to legally marry (unless specific circumstances apply). - It must be proved that the marriage has irretrievably broken down. This is often proved by showing that:
(a) the parties agreed to separate, or one party told the other party that the relationship was over, either by their words or actions, and then followed through on that decision;
(b) the parties have been living separately and apart for at least 12 months immediately before filing for divorce;
(c) there is no reasonable likelihood of reconciliation.
You can break up and get back together again for a maximum of three months, but the total time you spent separated has to be at least 12 months.
You can continue living in the same home together and still be considered to be “living separately and apart” (this is called ‘separation under the one roof’). If there has been separation under the one roof, the Court will usually require an affidavit from an independent adult witness who confirms that.
What if my marriage isn’t recognised?
If your marriage isn’t recognised under Australian law, then you cannot be divorced. But you might be able to apply for a court order that your marriage is void. Parties to avoid marriage have the same right to start a property case as married people.
Parties whose marriage is not recognised might also qualify as de facto partners and have similar rights regarding the property as married people.
How long do I have to wait?
You must be separated and living apart for at least twelve months in total before you can apply for a divorce. Once the initial divorce order is made, it becomes final usually one month and one day later.
How do you get a divorce?
Divorce happens when the Court makes an order that the divorce is granted.
Either you or your ex (or both together) must apply to the Family Court for the divorce order. There are specific forms which must be completed, and which can be accessed through the Court’s website. Once you have completed the forms and sworn them, they must be filed with the filing fee and proof of the marriage, i.e., marriage certificate. This can all be done online.
After the application has been filed at Court, the Court then lists a hearing. Unless you are jointly applying for a divorce, you must arrange for the divorce forms to be formally served upon your ex. On the day of the hearing, if:
(a) your documents are in order; and
(b) the Registrar is satisfied that proper arrangements have been made for any children under 18.
The Court will likely proceed to grant the divorce order. The order for the divorce will specify when it becomes final – typically one month and one day after the order is initially made, but occasionally longer if arrangements for children need to be made first (this is rare). The order is written out and sealed by the Court, and you can obtain a copy online.
If the Registrar has further questions or there are issues with the documents, the Registrar will usually set a further hearing at a new date in the future to give time to address the issues.
What happens once you’re divorced?
After the divorce order is made, and once it has come into effect:
- you will be able to legally marry again;
- your Will becomes invalid, unless you have spelled out in the Will that you made it intending that it continue after your divorce;
- you have exactly one year to start a claim against your ex for property settlement or spousal maintenance in the Family Court. After that date, you have to get the court’s permission to start a case and show good reasons why the court should let you start proceedings when you are ‘out of time’; and
- your entitlements to various social security and other benefits may change.
What if my ex doesn’t want to get divorced?
It doesn’t matter if one person doesn’t want to get divorced. The court will still grant the divorce order once it is satisfied that the evidence allows it to do that.
Occasionally, a party tries to say that they have not separated and are still living together! This is rare, and when it happens, the court will usually have to hold a trial to assess one way or another if the evidence establishes grounds for a divorce.
What if I don’t know where my ex is now?
The court requires you to serve copies of the divorce application on your ex. That usually means getting a third person to personally give the documents to your ex. This is to make sure they know you are applying for the divorce and have a fair chance to respond if they wish to do so.
However, if you don’t have a specific address for your ex, there are special circumstances in which the court can give you permission to serve the documents in a different way. Some examples might be that the court allows you to; give the documents to a friend or relative or employer of your ex, with a request that they pass them on; send copies to your ex by email, Facebook, SMS or some other electronic method; or occasionally, advertise in a newspaper that you have filed, and are proceeding with, an application for divorce, and letting them know where they can get copies of them.
What happens to the children in a divorce?
Although the court has to be satisfied that there are appropriate arrangements for the children when it grants a divorce, the divorce order doesn’t in itself actually result in any changes in the kids care or living arrangements, child support, or any other aspects. You need to organise those arrangements separately.
If the court isn’t satisfied that there are appropriate arrangements for kids, it can still grant the divorce but delay the divorce becoming final. This is very rare.
What happens if I don’t proceed with a divorce?
There’s no requirement to get divorced, but your ex may apply without your agreement.
You can only re-marry once you are divorced. If you do go through a ceremony of marriage without being divorced, then:
(a) your second marriage is void, and
(b) you commit a criminal offence.
If you don’t divorce and one of you dies, then the other person remains entitled to make claims under legislation regarding Wills and inheritances. If the spouse who dies did not make a fresh Will, then their old Will may remain valid, and any gift or bequest to the surviving spouse may also be valid. This can mean that decades after separation, the surviving spouse gets an unexpected inheritance!
My ex is my visa sponsor - what happens if we divorce?
Many Australian Visas require parties to remain in their de facto relationship or marriage. If you get divorced, then this can affect your visa, and you may need to make separate arrangements to stay in Australia. You should take legal advice on the effect of that, and what your options might be.
Do I have to wait until I’m divorced to file Consent Orders or apply for property orders?
No. There is no minimum waiting time to file Consent Orders or commence a financial claim in the Family Court. In theory, you could apply for Court Orders or lodge an agreement on the day after you separate (not that we ordinarily recommend that!).
What a divorce Order does in relation to the property and spousal maintenance claims is create a deadline for applying for Orders, and that deadline is one year from the date the Order is made final. Otherwise, there is no relationship between divorce and property orders. A party can start the process of legally restructuring the marital assets and finances, as soon as he or she is ready to do so.
How can DCH Legal Group assist with divorce matters?
DCH Legal Group will clearly explain the costs involved at every stage so you always know where you stand. We’ll work with you to find ways of doing the necessary work as cost-effectively as possible without cutting corners, avoiding litigation in the family court – unless it’s necessary. For more information on our divorce services, view our service page or arrange an appointment.
Note: if you would like to receive or speak to a divorce lawyer, please contact the DCH Legal Group office on 08 9382 8488, or by email at dch@dch.com.au.
Disclaimer:
This article is general in nature and is not to be taken as legal advice. You should consider seeking independent legal, financial, taxation or other advice to check how the information relates to your unique circumstances. DCH Legal Group is not liable for any loss caused, whether due to negligence or otherwise arising from the use of, or reliance on, the information provided directly or indirectly.
