Obtaining a Divorce is the very last step in the process of separating from your partner and the legal end of a marriage. In Australia, obtaining a Divorce can be a relatively simple process and can even be done online through the Family Court of Australia.
Under Australian law, you are not required to prove any fault by your spouse, to apply for a Divorce. For example, you do not need to prove that your partner has been unfaithful or has been violent during the relationship.
How to apply for a Divorce
To apply for a Divorce, you must satisfy the following criteria:
- Prove that you have validly been married. (As long as an overseas marriage was legally valid in another country, such a marriage is recognised in Australia. For example, if the parties entered a legal marriage in Ireland, they could apply to have the Divorce completed in Australia - you will be required to provide a copy of the overseas Marriage Certificate, which in some cases may need to be translated).
- Provide a copy of your Marriage Certificate. (this is often enough evidence to prove your marriage).
- You must have been separated for at least 12 months. (It is possible to be separated under the one roof, but further evidence would need to be provided to the Court by way of an affidavit/s to prove such a separation. (In the event that you have been married for less than two years the court requires the parties to enter counselling before they can apply for a Divorce).
- Complete an Application for Divorce, which is a Form that can be downloaded from the Family Court website. Sometimes completing this Application form can be “tricky” and we can provide you with guidance as to how to complete the Form. It is not necessary for your partner to sign the Application for Divorce. (Although the Application for Divorce can be a joint application, signed by both parties).
- Pay the filing fee of $955 (if you have a Health Care Card the filing fee can be reduced).
Once the Application for Divorce has been completed it needs to be filed with the Family Court (which can be done online), together with a copy of the Marriage Certificate, and payment of the filing fee.
Once processed by the Court, you will receive a sealed (stamped by the Court) copy of the Application Form, which will also set out the date upon which your Divorce Hearing is listed before the Court (usually 10 to 12 weeks in the future).
Although your partner is not required to sign the Application for Divorce, you are required to prove to the Court that your partner has been served with a copy of the Application Form, and that the Divorce Hearing date has been brought to their attention. (Some time limits apply with respect to service before the Divorce Hearing date).
Service can be either by post, or through a Process Server. Service is not required if the parties have entered a Joint Application for Divorce.
Do I need a lawyer to finalise my Divorce?
At Tonkin Legal, our Family Law team can take care of the whole process of finalising your divorce for you. You don't need to worry about completing the paperwork, going to court or dealing with your ex-partner or their lawyer.
It is particularly important to consult a family lawyer if there is children and/or property involved.
If there are children under 18 (except when a Joint Application for Divorce has been made), it is necessary for the person applying for the Divorce, or their solicitor to attend Court on the date of the Divorce Hearing.
A Registrar of the Court will ask various questions regarding necessary arrangements being made for the “care, welfare and development of any children” and confirm that the other party has been served with a copy of the Application for Divorce.
Once satisfied, the marriage is proved, adequate arrangements have been made for any children (if any), and that service has been proved, the Registrar will grant a Divorce Order.
It also is important to understand that your right to negotiate a property settlement and spousal maintenance expires 12 months after the divorce order is issued. We strongly recommend seeking legal advice before finalising your Divorce to ensure you are not potentially missing out on any of your legal entitlements.
How long after my Divorce is finalised can I get re-married?
Many people only choose to finalise their Divorce if they find a new partner and are considering getting married again.
The Divorce Order will not take effect until one month and one day from the date of the Divorce Hearing. For example, if your Divorce Hearing was on 2 February, the Divorce does not take effect until 3 March. This means that you cannot remarry until after 3 March.