In this article, we look at how long divorce takes in Australia.
Divorce can be a complicated process to navigate as it requires extensive legal procedures and paperwork. While the standard divorce process in Australia usually takes a few months to be finalised after submitting an application, the total duration of divorce proceedings and everything that they entail can vary significantly as many factors come into play.
Let’s take a closer look at the factors that influence how long a divorce takes.
Factors That Influence the Duration of a Divorce
The legal framework in Australia provides certain guidelines and timelines for divorce, but individual cases can vary widely in their duration. The average divorce takes around 3-4 years from separation to a finalised settlement.
It’s also important to note the distinction above between the divorce itself, which is simply the legal severance of the marriage, and everything else that it entails such as devising property settlement, calculating child support, determining spousal maintenance etc. While the actual time between filing for divorce and having a divorce order issued by the court usually only takes several months, the rest of the proceedings may take much longer.
Divorce is usually granted in two steps:
Step 1: Court order
If all the requirements are met and the court is convinced that adequate provisions have been set for any children involved in the relationship, a court order will be issued. However, it’s crucial to recognise that a period of time must usually pass before the order takes effect.
Step 2: Finalising the Divorce
Following the issuing of the initial court order, there is a standard waiting period. The divorce order generally becomes absolute 1 month and 1 day after the order is made, marking this date as the official divorce date. However, there are circumstances where the court might have compelling reasons to delay the granting of the divorce beyond this timeframe.
Common Delays in the Divorce Process
- Disputes Over Child Custody or Property: If the parties cannot agree on these matters, the court may need to step in, which can extend the process by several months or even years.
- Non-Response to Divorce Papers: If one party fails to respond to the divorce application, the process can also be delayed. The court may require additional hearings or documentation before proceeding.
- Unable to Serve Papers: If you struggle to serve your spouse with sealed copies of the divorce application, this will also delay the process. This is only relevant if you make a sole application for divorce.
- Missing or Incorrect Documentation: Filing incomplete or incorrect paperwork can lead to delays as the court will not process the application until all required documents are submitted.
- If the other party objects: This can significantly delay the process by requiring additional hearings or evidence to address the disputes.
Now let’s look at the full timeline and process of separation, divorce proceedings, and all other relevant factors to get a more comprehensive picture of the duration between the initial separation, the finalised divorce, and property settlement.
The Process and Timeline of Separation and Divorce Proceedings in Australia
While each situation may have unique circumstances, there are general procedures in place that influence how long divorce takes in Australia to ensure fairness and due diligence.
- Initial application: Once you’ve decided to legally end your marriage, the first step is to file an application for divorce. This can be a sole application (filed by one party) or a joint application (filed together by both parties). A sole application will need to be served on the other party in a specific way and a further document will need to be filed.
- Mandatory waiting period: In Australia, there’s a mandatory 12-month separation period before the court considers your divorce application. This means that from the time you and your partner decide to separate, you must wait at least 12 months before you can file for divorce.
- Response and possible mediation: Once the application has been filed and served (in case of a sole application), the other party has 28 days (if they’re in Australia) or 42 days (if they’re overseas) to respond. If disagreements arise — for instance, disputes over the date of separation or arrangements for children — mediation may be suggested. Mediation can extend the duration of the divorce process, as it involves meetings, discussions, and potentially multiple sessions to arrive at mutual agreements.
- Final hearing and judgement: After all the above stages are completed, the divorce will progress to a final hearing. In many cases, especially for joint applications, you may not need to attend court. The judicial officer will review the evidence, ensure all criteria are met and, if everything is in order, grant the divorce. Once the divorce is granted, there is a further wait of one month and one day before the divorce becomes final, as outlined above.
While the procedure might seem straightforward and sequential, each step can carry emotional, logistical, and legal significance. And though the timelines may vary depending on individual circumstances, understanding the general outline ensures you’re better prepared for the journey.
How Long Does Property Settlement Take?
Beyond the emotional turbulence of a divorce, the practical implications concerning assets, property, and finances are often significant. Property settlement is an essential aspect of many divorces, ensuring that both parties can move forward with clarity and security regarding their financial futures.
A divorce property settlement refers to the process through which assets, debts, and finances are divided between both parties after separation. This isn’t just about tangible assets like a home or bank accounts; it can also encompass superannuation, investments, and other financial interests.
Find out more about property settlement after divorce.
Much like the divorce process itself, the duration of property settlement can be influenced by several factors:
- Complexity of assets: If the couple has multiple assets, overseas investments, or complex financial portfolios, or a business for example, valuations (and the engagement of experts) and extensive disclosure may be needed. This can cause delay in some matters.
- Level of agreement: A mutual agreement on the division of assets can make the process swifter. If both parties agree on who gets what, it’s likely to be faster than situations where disputes arise and mediation or legal intervention becomes necessary.
- Legal processes: Ongoing negotiations can draw matters out and cause delay, as can instituting court proceedings. Mediation can often be an effective way to reach agreement sooner.
It’s worth noting that while the divorce might be finalised, property settlement can take place either before or after the divorce order has been made. However, it’s crucial to be aware that once a divorce order takes effect, a 12 month time limit commences for parties to file in the Court for property settlement and/or spousal maintenance, or leave may need to be sought to file out of time. For separated de facto couples, this time limit is 2 years from the date of separation. Such leave applications can be expensive and success is not guaranteed. Find out more about how assets are divided in a divorce.
Our Divorce Lawyers Can Help You Through This Process
For more information on how long divorce takes in Australia, reach out to Daykin Family Law today.
Whether you are separating from your de facto partner or spouse, there are often many decisions to make, from the division of finances and property settlement to arrangements for child support and divorce. Our divorce lawyers are here to help you every step of the way. Shannon Daykin is an Accredited Family Law Specialist with extensive experience in all aspects of family law. Contact Daykin Family Law today to arrange a reduced fixed fee initial consultation.
