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Divorce
The basics
Before you contact a divorce lawyer, it is important to remember that you and your ex-partner must be separated for at least 1 year before you can apply for a divorce. Any time spent making a genuine attempt to reconcile will not ‘reset’ the 1 year time limit.
For example, if you separated for 8 months, and then spent 2 months together trying to reconcile the marriage unsuccessfully, you only need to wait a further 4 months before you can apply for a divorce.
You can apply for a divorce without a lawyer, but if can be complicated especially if you have children. Contact me for a free, no-strings-attached confidential chat, before starting your own application.
The details
No-fault divorces were introduced in Australia in 1976. Australian divorce rates for families with children has steadily decreased since then (from about 67% of divorces involving children to about 47% in 2016 - source: Australian Institute of Family Studies).
Before making the decision to divorce, you should consider whether there is any change of reconciliation between you and your spouse. There are many options available to help you and your spouse attempt to resolve your differences, including free counselling services such as Relationships Australia.
If you have been married for less than two years, you will be required to at least attempt marriage counselling before applying for a divorce. A certificate proving that you have attended counselling must be filed with your application.
You also need to meet certain other legal requirements, including being an Australian citizen, or being lawfully present in Australia for at least a year.
You also need to have been separated for at least a year, before you file your divorce application. Any time you’ve spent making a genuine attempt to reconcile the marriage will not ‘reset’ the 12-month time limit, however time spent attempting reconciliation cannot count towards the 12 months. For example, if you separate for 8 months, and then spend 2 months together trying to reconcile the marriage unsuccessfully, they will only have to separate for another 4 months before you can apply for a divorce.
If you have separated but continued living in the same household, you should discuss this with your lawyer. It may be necessary for your lawyer to include additional evidence of your separation to support your divorce application.
Fortunately, the legal process for a divorce is relatively easy and, in many cases, no attendance at Court is necessary. You can make a joint application for divorce (where you and your ex-partner jointly agree to apply for a divorce together), or you can apply for a divorce entirely by yourself. If it is not a joint application, then your ex-partner will need to be personally served with the application.
Your divorce lawyer will also need your marriage certificate, which either you or your lawyer can obtain from the Registry of Births, Deaths and Marriages if you do not have one.
You or your lawyer may need to attend your divorce hearing before a registrar to finalise your divorce, if you have children from your marriage who are under 18 and the application is not a joint application.
It may also be prudent for your lawyer to attend Court if you suspect your ex-partner may attend, and object to the divorce.
Once your divorce application is granted, your divorce won’t come into effect until one month and one day after the order is made.
Once you have separated and applied for a divorce, it is a very good idea to discuss with your lawyer what further steps need to be taken. Strict time limits may apply to sorting out your other family law matters including property settlement. Make sure you speak to your divorce lawyer about property settlement matters, even if you think you and your ex-partner completely agree about property settlement or you don't think you need to worry about it. Property settlement can be complicated, and there are many pitfalls. Once you are divorced, legislation may prevent you from exercising your proper legal rights in relation to the wealth and assets accrued during your marriage.
You should also get legal advice about making a new will, and a new enduring power of attorney. It is also a good idea to contact your superannuation fund and any life insurance or death benefit providers, to update your details and the details of your beneficiaries.
Although it is possible to apply for a divorce in Australia without the help of a family lawyer, family law relating to separation can be complex and you can make mistakes which may be very costly for you in the long run. If you have recently separated, or you are wanting to divorce your ex-partner, it is always worthwhile contacting a divorce lawyer to discuss your options and the complex legal process that lies ahead. Engaging an appropriately qualified, experienced divorce lawyer to help you with your application probably won’t cost you as much as you think it will, but the benefits may be priceless.