Applying for a Divorce – What Do I Need to Know?

If you’ve landed on this page, the chances are you’re looking for advice on the divorce process and how to apply for a divorce.  If you have been separated for 12 months and you can satisfy the court that this is the case, then you have grounds for divorce.  In this article, we’ll answer some of the most common questions regarding divorce applications so you can make an informed decision about your next steps.

Daykin Family Law offer a range of services to support the process of divorce and separation, including child support, child custody, property settlements and family mediation servicesView our blog for a wealth of information on various Family Law matters, and if you need further assistance, do not hesitate to get in touch.

Who can apply for divorce?

To be eligible to apply for a divorce in Australia, either you or your spouse must answer yes to at least one of the following:

  • Were born in Australia or have become an Australian citizen by descent (born outside Australia and at least one parent was an Australian citizen and your birth is registered in Australia).
  • Are an Australian citizen by grant of Australian citizenship (a citizenship certificate will be required).
  • Are lawfully present in Australia and intend to continue living in Australia. You must have been living in Australia for at least the last 12 months.

You’ll need to satisfy the Court that you have lived separately and apart for at least 12 months prior to making a divorce application and that there is no likelihood of getting back together and resuming married life.

How do I know if I have grounds for divorce?

Since the introduction of the Family Law Act in 1975, the only grounds now available for divorce is that the marriage has broken down irretrievably  Section 48 of the Family Law Act 1975 (Cth) sets out that to establish the fact that a marriage has broken down irretrievably, applicants need to prove both that they have been separated for at least 12 months and, secondly, that there is no reasonable likelihood of the parties resuming cohabitation.

What if we still live together?  Can we still apply for a divorce?

It is possible to be separated and still live together in the same home. Mostly this happens for just a short period of time, however for some spouses it can extend to months and even years.  Provided you meet criteria of a 12 month separation prior to your divorce application, you are able to proceed, however you will be required to provide the court with additional information.

These are usually in the form of two affidavits; one provided by you and one by a family member or friend, detailing the separation.  For example, this could include things like changes in sleeping arrangements, the division of finances, household duties and a reduction in joint attendance at social events, amongst others.  There isn’t a set list, but you’ll need enough evidence to persuade the Court that you are no longer a couple.

If you want a divorce but have been living under the same roof, it is advised that you seek legal advice.

How do I submit a divorce application?

How you submit a divorce application depends on whether it is a sole application or a joint application.  If both parties agree, you do not need to serve any documents on the other party and attendance in Court is not required unless you select to attend.

However, if you make a sole divorce application, the process is more complicated.  Firstly, you will need to inform the Court that you are applying for a divorce, making you the ‘applicant’ and your spouse the ‘respondent’.  Divorce papers will need to be served on the other party, and the application must be stamped with the seal of the Court by the Court Registry.  You may not serve the documents yourself.  You must use a third party (such a paid process server, friend or relative), or by pre-paid post to the respondent’s last known address if they sign a document acknowledging they were served.

If a sole divorce application is made, and you and your spouse have children under the age of 18, a Court appearance will be required.  If the respondent opposes the granting of a divorce order, they can file a response in the Court within 28 days (for example, if the respondent can demonstrate that the parties haven’t been separated for 12 months).

What if my spouse refuses to accept the divorce application service, or cannot be located?

If your spouse refuses to sign for the divorce serving (known as an Acknowledgment of Service) then the server must provide a photograph of the respondent (spouse) and for the server to confirm that this was the person served and that they refused.

If you are unable to locate your spouse, you can still apply for divorce but the Court requires evidence that you have attempted to locate them, either by serving divorce documents at their last known address, making enquiries with the respondent’s family, friends or colleagues .  This will need to be backed up by evidence (affidavits and postal receipts, for example).  An order for substituted service may need to be sought.

What happens after I file my divorce application in Court?

Once the application is filed, the registrar needs to be satisfied that ‘irretrievable breakdown’ (as detailed above) exists. If there are no children under 18, then there is no need for either party to appear personally at a hearing.  However, if there are children of the marriage under 18, one of the parties is required to attend (most likely applicant).

The court order for divorce is granted in 2 steps.

Step 1:

If the Court is satisfied that arrangements for the children have been made then a Court Order (or Divorce Order) will be made.

Step 2:

The Divorce Order then becomes final, usually within a month and a day, and this becomes the actual date that the Divorce Order takes effect.  A copy of the Divorce Order will be mailed to you and your ex-spouse, stamped with the Court seal.  After the Divorce Order takes effect, you are able to re-marry if you wish.

Do I need a lawyer to process my divorce?

Some people apply for a divorce without a lawyer, which can be suitable if the application is joint.  It can be more complicated, as we set out above, for sole applications.

Is a Divorce Order all I need to finalise my financial matters?

No, a divorce is only the legal severance of your marriage.  To finalise your property settlement and/or spousal maintenance agreement in a binding and enforceable way, further steps need to be taken to enter into either an application for consent orders or a Binding Financial Agreement.  We can guide you through the process and advise on which avenue is best for your situation.

If you can’t reach agreement on property settlement and/or spousal maintenance matters, then mediation may be a good way forward.  Court proceedings should always be a last resort.

Are there any critical time limits I need to be aware of once I am divorced?

Yes, once a Divorce Order takes effect terminating your marriage, a time limit starts ticking.  You and your ex-spouse will then both have 12 months to file in the Court for property settlement and/or spousal maintenance.  If you don’t, you may be out of time and this may cause you financial detriment.  You can seek the Court’s leave to proceed with an application out of time, but success is not guaranteed and it can be a costly process.

We recommend that you obtain expert family law advice at the time a divorce is applied for to ensure that your interests are protected.

Steps needed outside of a Divorce Application

After separation, you can be left to make very important decisions at what can be an emotional, tumultuous time.  It is therefore recommended that you seek objective, expert legal advice to ensure that you receive the best outcome for you and your family.

It is also advisable to obtain legal advice if you need assistance in making parenting arrangements, dividing assets such as property after separation or in the event that spouses are separated but living together.

If you are seeking legal advice about your separation, or just need to understand your divorce application options further, Daykin Family Law can help.  Shannon Daykin is an experienced Family and Divorce Lawyer, recently named as a Leading Family & Divorce Lawyer (Recommended, Brisbane) and Leading Parenting & Children’s Matters Lawyer (Recommended, Queensland) in the prestigious Doyle’s Guide 2018 and 2019.  In 2019, Daykin Family Law was named in the Doyle’s Guide as a Leading Family & Divorce Law Firm (Recommended).

We give you expert legal advice on the most appropriate and cost effective course of action for you and your family.  Contact us on (07) 3338 5645 to make an appointment for a fixed fee initial consultation today.

How to get custody of a child

If you have just separated or are likely to, it is important you get advice about what will happen with custody of the children.

Most of the time, parents who have separated agree on the future parenting of their children.  For some, the children might live with one parent, and see the other at weekends, holidays and special days.  For others, the children may effectively have two homes and spend an equal amount of time with each parent.  For many, the arrangements are somewhere between.

Sadly, not all agreements can be made amicably, or there may be extenuating circumstances that mean parents choose to litigate in the family court system.  Litigating child matters in the courts can be particularly emotionally straining for all parties involved and is often considered to be a last resort.  That being said, it is important to understand the process and implications if you’re considering seeking custody as part of a separation.  In this article, we seek to provide some clarity around the process of seeking child custody.

What is child custody?

The term ‘custody’ is actually no longer used by the family law courts, however it is still used regularly by others and in the media.  In Australia, parenting arrangements fall under the Family Law Act 1975, which covers divorce and separation, property separation, parenting arrangements and financial maintenance.  The terms ‘custody’ and ‘access’ are no longer used and have been replaced with ‘live with’ arrangements and ‘spend time with’ arrangements as preferred terms.

What is the legal process for getting child custody?

There are no standard arrangements for the care of a child following separation, however the starting point is Section 65E of the Family Law Act.  This details the basis of who a child will ‘spend time with’ and who a child will ‘live with’.

The law assumes firstly that decision making is shared amongst parents (for example decisions around religion, medical treatments, changes to where a child lives or to their name or decisions around their education), unless in circumstances of a risk of family violence or abuse.  However, equal shared parental responsibility does not always mean that there is an automatic right to spend an equal amount of time with the child.  This decision is made by the Courts in the best interests of the child.

What are the ‘best interests of the child?’

The courts’ primary focus in deciding on custody (parenting order) is what is in the child’s best interests.  The primary considerations are;

  • The benefit to the child of having a meaningful relationship with both parents
  • The need to protect children from any harm, such as family violence, neglect or physical and psychological harm

The latter is always deemed the priority of the two primary considerations.  There are a host of other additional considerations that may include;

  • the views or wishes of the child – if these are expressed
  • the relationship of child with their parents and significant others, for example grandparents and siblings
  • parental involvement – how much time each parent has spent with the child, whether they have fulfilled their parental obligations
  • the effect of any changes – such as where the child has been living or staying, practical difficulties of spending time with each parent or significant others
  • cultural issues – for example religion
  • any family violence issues
  • another other issues the court deems are important to the case

Should I go to court for child custody?

It is most often the case that parenting arrangements can be made without the intervention of the Courts.  Most lawyers would recommend finding alternative ways to finding a resolution, for example mediation.  By appointing an experienced family lawyer and taking a proactive approach to litigation, it is very possible to avoid the Court or leave the court system sooner, allowing you to move on and raise your children.

We pride ourselves on only a very small percentage of our matters making it to a final hearing in the court because the advice we give is pragmatic and we explore all opportunities available to settle your matter without the high cost associated with litigation to the end.

If you are seeking court intervention, ask yourself the following;

  • Do I want sole parental responsibility?
  • Why do I want sole parental responsibility?  Do I have a genuine concern about the other party’s ability to care for the children and/or capacity to co-parent effectively?
  • Why do I want the children to live with me?  Do I have a genuine concern about the children’s ability to adjust or the new lifestyle of my ex-partner?
  • Are my children at risk of violence, abuse or neglect? Do I have any evidence of this?

If your concerns are genuine and you cannot come to a resolution outside of the Court, you can file an application in the Family Law Courts for Parenting Orders.  You should seek advice about whether any exemptions to attending family dispute resolution first apply to your circumstances.

What is the process for getting a court order?

You must demonstrate that you have tried alternative methods of dispute resolution prior to filing an application with the courts, unless your situation is urgent or another exemption applies (for example it involves family violence or child abuse).  It is imperative to get advice from your solicitor prior to taking any action.

If you are unable to reach an agreement, documents need to be filed with the Federal Circuit Court of Australia, including the initiating application, affidavit(s), mediation certificate, notice of risk and the court filing fee.  In some cases, an application may need to be filed with the Family Court of Australia.  It is really important to seek advice from a family law expert if you are considering going down this path.  We can guide you through the parenting arrangements process, avoiding litigation where possible and ensuring you can the best outcome for your children and family.  If Court is the only option, then we can guide you through the litigation process.

What if I already have a parenting arrangement in place and circumstances change?

Firstly, it depends how the parenting arrangement is recorded.  If you have a court order and want to vary it, you may need to satisfy the Court that there has been a significant change in circumstances, which requires expert family law advice.

The above gives you just a snapshot of some of the complex factors involved when considering child custody.  It is possible to avoid Court and come to a resolution that suits both parties, particularly with the support of a friendly, understanding and compassionate family lawyer. At Daykin Family Law, we’ve worked with hundreds of parents to come a resolution in the best interests of their children.

We have developed close relationships with psychologists and social workers who also act as experts in the Family Law Courts and can help you and your family stay out of the Court system wherever possible.  If Court is the only option, we can discuss with you ways to keep your legal costs down and work with you to achieve the result you desire.

Daykin Family Law have offices in Brisbane and are highly experienced in navigating the complex area of Child Custody.  Director, Shannon Daykin, was named in the prestigious Doyle’s Guide for 2019 in the Leading Family & Divorce Lawyers list (Recommended) and Leading Parenting & Children’s Matters Lawyers list (Recommended). Daykin Family Law was also named as Recommended in the Leading Family & Divorce Law Firm list.

We give you expert legal advice on the most appropriate and cost effective course of action for you and your family.  Contact us on (07) 3338 5645 to make an appointment for a fixed fee initial consultation today.