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 services. View 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.