Australian Divorce Guide - A Step-by-Step Approach to Divorce
- Brett Jones
- 4 days ago
- 5 min read
Applying for a divorce can be an emotional and administrative challenge. With help from divorce lawyers in Melbourne, this Australian divorce guide outlines the legal steps to make the process smoother.
This guide explains the key aspects of the divorce process in Australia and provides clear, practical general advice.
Understanding the Australian Divorce Guide
Divorce in Australia is governed by the Family Law Act 1975. While it may seem straightforward, the divorce process requires careful attention to detail and the legal steps.
To apply for a divorce, the following two requirements must be met.
Your marriage must have broken down irretrievably, which means you and your spouse have separated and there is no prospect of resuming the marital relationship.
You must have continuously lived separately and apart for 12 months (this can include while living under the same roof - see below).
Can we live in the same house and apply for a divorce?
Yes, you can live in the same house and apply for divorce, provided you are no longer in a marriage-like relationship. In this case, the spouse party applying for divorce must swear or affirm an affidavit giving information to the court about the separation under the same roof. If the information is inadequate to allow the court to determine that the marriage has broken down irretrievably, a divorce order will not be granted.
What happens if one spouse says the marriage has broken down irretrievably? Joint agreement is not required. Provided only one spouse believes the marriage has broken down irretrievably and acts accordingly, the requirement has been met. While a spouse party may want to save the marriage, respecting the other spouse's view on the marriage is essential. Pushing too hard to save a marriage can cross a threshold into coercive controlling behaviour.
What happens if we start living together again, but separate again?
If you resume cohabitation and a marriage relationship, you can do so for up to 3 months without resetting the 12 months of separation required before applying for divorce.
There are two types of divorce applications:
Sole Application: One spouse applies for divorce. The other spouse may respond.
Joint Application: Both spouses apply together, which can simplify the process.
It is important to note that divorce only legally ends the marriage. Issues such as property settlement and child custody are dealt with separately. Remember that once a divorce order has been granted, you only have 12 months to apply to the court for a property settlement. Outside of 12 months, you must file an out-of-time application, which may not be granted; otherwise, the parties may agree by consent.
Key Requirements for Divorce in Australia
You or your spouse must consider Australia your home and intend to live here.
You must have been separated for at least 12 months.
You must apply to the Federal Circuit and Family Court of Australia.
Steps to Follow in the Divorce Process in Australia
The divorce process involves several steps, each with specific requirements:
Filing the Application
You can file online or in person. The application must include details about your marriage, separation, and any children under 18.
Serving the Divorce Papers
If you file a sole application, you must serve the divorce papers on your spouse. This ensures they are informed and can respond to the application.
Response from Spouse
Your spouse has 28 days to respond if they live in Australia, or 42 days if overseas. They can agree or oppose the divorce.
Court Hearing
Attending the divorce hearing may be unnecessary if no children are under 18. However, if children are involved, the court will want to ensure arrangements are in place for their care, welfare and development.
Divorce Order
If the court is satisfied that the requirements for divorce are met, it will grant a divorce order. The divorce becomes final one month and one day after the order is made.
Practical Tips for a Smooth Divorce Application
Gather all necessary documents before applying.
You will need a copy of your marriage certificate.
You will need your citizenship certificate if you were not born in Australia.
Consider legal advice, especially if children or property are involved.
Keep communication respectful and clear with your spouse.
How Long Does It Take to Get Divorced in Australia?
The timeline for divorce varies depending on individual circumstances. You must have been separated for 12 months before you can apply. After filing, the court usually takes around 4 to 6 weeks to process the application and grant the divorce order if everything is in order. Remember, the divorce order does not become final for 1 month and 1 day after the divorce order is made.
If the application is straightforward and uncontested, the process can be quicker. However, complications such as disputes over the application and opposition can significantly extend the timeline.
Factors Affecting Divorce Duration
Whether the application is sole or joint.
The presence of children under 18.
Whether the divorce is contested.
Court availability and workload.
What Happens After the Divorce Order?
Once the divorce order is final, you can legally remarry. It is important to update your personal records, such as your will, superannuation death benefit nomination and insurance policies, to reflect your new status. The divorce may invalidate any bequest, legacy or gift to the former spouse made in your will.
Managing Children and Property During Divorce
Divorce often involves decisions about children and property. These matters are handled separately from the divorce application but are equally important.
Child Custody and Support
The court prioritises the best interests of the children. Parents are encouraged to agree on custody, visitation, and support arrangements, provided it is safe to do so. A party may apply to the court for assistance if an agreement cannot be reached.
Property Settlement
Property settlement involves dividing assets and liabilities equitably. This can be done through negotiation, mediation, or court orders. It is advisable to seek legal advice to understand your rights and obligations.
Tips for Handling These Issues
Keep detailed records of financial and parenting arrangements.
Consider family dispute resolution to resolve parenting issues amicably.
Consider mediation to resolve property settlement disputes amicably.
Consult a family lawyer for guidance tailored to your situation.
Where to Get Help and Legal Advice
Navigating the divorce process can be complex. Professional advice can help you understand your rights and responsibilities. Family lawyers who practice in divorce in Melbourne, Dandenong and Pakenham can provide valuable support.
For those seeking assistance, the divorce process in Australia offers expert legal services to guide you through every step.
Additional Resources
Freemont Family Lawyers are Divorce Lawyers in Melbourne
Family Relationship Advice Line: 1800 050 321
Legal Aid Commissions in each state and territory
Community legal centres
These resources can ease the burden and help you make informed decisions.
Moving Forward After Divorce
Divorce marks the end of one chapter and the beginning of another. It is a time for healing and rebuilding your life. Focus on self-care, seek support from friends and family, and consider counselling if needed.
Planning for the future includes managing finances, co-parenting effectively, and setting new personal goals. Remember, while the divorce process can be difficult, it also offers an opportunity for growth and new beginnings.
This guide aims to provide clear and practical information to help you understand and navigate the divorce process in Australia. For personalised advice and support, it is always recommended that you consult a qualified family lawyer in Melbourne.
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