Divorce

If your marriage has broken down, then you and/or your former spouse may be considering getting a divorce to finalise the martial relationship.

Here, we’ve answered popular questions about Australian divorce law to help you understand more about the process.

Can I Get a Divorce?

In order to file for divorce in Australia, you and your spouse need to have been separated for a period of 12 months or more.  Furthermore, either you or your spouse must:

  • Regard Australia as your home and intend to live in Australia indefinitely;
  • Be an Australian citizen by birth, descent or by grant of Australian citizenship;
  • Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

An application for divorce can be made jointly with your former spouse or you can make an application alone.

If your application is made jointly, you can both avoid having to attend court (physically or by telephone) for the hearing of your divorce application as it will be heard ‘on the papers’. You will also avoid the need to ‘serve’ your former partner with a copy of the application.

If you make the application alone, then you are responsible for seeing that the application is served on your former spouse and ensuring that evidence of that service is lodged with the court. This must be done before the date of the hearing.  

In order to avoid any complications with the process, which can be largely procedural, but still stressful – particularly if a party tries refuses to accept service, avoids service or cannot be located – many people choose to engage a family lawyer to assist them with this process.

Family lawyers are also engaged to represent parties who are required to attend Court at the hearing – for example, those who file a sole application and have children under the age of 18.

How Much Does a Divorce Cost?

As of November 2020, the filing fee to lodge an application for divorce is $930, while an application for divorce at a reduced fee costs $301. All court fees are set by Federal Government Regulations and the current fees are available here.

However, the professional fees associated with preparing an application for divorce and any associated documents (e.g. Affidavit of Service, Affidavit addressing any unusual issues (e.g. separation under one roof)) will vary and be determined by the amount of time it takes to prepare the requisite document.

How Long does a Divorce Take?

At present, and generally speaking, it may take several months for your divorce to be finalised. This timeframe begins when you first file your application with the court and ends when the court issues your divorce order.

However, it can take several months for the application to be filed if you and your spouse disagree on the facts (e.g. the date of separation) or if you have not been able to agree on appropriate arrangements for your children.

How Long After Divorce can you Remarry in Australia?

Once your divorce has been granted, it will be finalised one month and one day later, unless a special order is made by the court to shorten that time.

After your divorce has been finalised, you are able to re-marry.

Important Time Limits

There are no time limits in which to apply for a divorce and you do not have to wait for your divorce order to become final in order to obtain a property settlement or formalise the arrangements for your children.

However, once your divorce order becomes final, you have a period of 12 months in which to apply to the court for a property settlement, in the event that you and your partner are unable to come to an agreement on your own.

If you do not make an application to court before the limitation date expires, you will forever lose your right to make an application to court without first seeking leave to proceed out of time – an application which may not be successful.

If you have missed your limitation date, you should immediately seek legal advice. Our solicitors can advise you about your prospects of bringing an application out of time. 

Are Divorce Records Public in Australia?

In Australia, anyone undergoing family law court proceedings is protected by Section 121 of the Family Law Act 1975. This means that details of family law court proceedings (including divorces) cannot be disclosed by newspapers, radio broadcasts or television reports.

Once your proceedings are finalised, records are often indexed and stored for up to 100 years. Judgements are routinely published for use by the legal profession, but these are done under pseudonyms to protect the privacy of the individuals involved.

Contact Our Divorce Lawyers in Brisbane

For more information about the divorce process, or to get your application underway, please contact us on 07 3837 5500 or enquiries@damiengreer.com.au

Separation

Provided you have separated, it is possible to resolve your property and financial issues without getting divorced. The separation date can be an issue in marriage if there is disagreement over the twelve-month waiting period before you can apply for a divorce. To put the fact of separation beyond dispute, you must inform your partner of your decision to separate. It is preferable to have evidence of informing your partner that you consider the marriage to be over and you wish to separate.

De facto and same sex relationships

The Family Law Act recognises your relationship if you live together as a couple regardless of your sex. The Act treats such relationships differently from marriage in that if the existence of such a relationship is disputed, proof will be required and a Court may have to decide the issue.

Even if the Court finds that the parties were in a de facto relationship, the simple fact of being in a de facto relationship is not sufficient to give the Court the power to make an order dealing with the property of the parties. There are the other following requirements:

  • the period of the relationship must be at least 2 years;
  • at least one of the parties to the relationship was ordinarily resident in a participating jurisdiction (i.e. all states and territories except West Australia); and

either

  • both parties were ordinarily resident during at least one third of the period of the relationship; or
  • the applicant for the order made substantial contributions, either financial, non-financial or to the welfare of the family comprising the de facto parties and their children.

Parties in a de facto relationship also have a different time limit within which they must commence court proceedings for a property settlement. Where it is 2 years for a de facto relationship, in a marriage parties have twelve months from the date their divorce order comes into effect to commence court proceedings for a property settlement. Therefore, as long as married couples do not divorce, there is no time limit imposed on them to finalise a property settlement.

Once a de facto relationship is found to exist and the other requirements referred to above have been met the Family Law Act  treats those parties no differently to parties who are married when it comes to dealing with property and financial issues. As the process for undoing your financial relationship is the same, you should refer to the information on our web site regarding financial issues and asset division.

To learn more about what is defined as a de facto relationship, please visit our Frequently Asked Questions.

None of the requirements for a defacto relationship apply to children and parenting issues.  The same law applies to all parents regardless of the kind of relationship they are in.