When our clients come to visit us, we’re often asked “how long will my divorce take?” Unfortunately, this is often a tricky question that is not always easy to answer.
At present, and generally speaking, it usually takes a few months for a divorce to be finalised. This timeframe starts when you first file your application with the court and finishes when a Divorce Order is issued by the court.
However, what is not included in this estimate is the timeframe leading up to the filing of an application for divorce. The length of this timeframe depends on whether you and your spouse agree on the facts contained in the divorce application, whether the application needs to be formally ‘served’ on your spouse (where a sole rather than joint application is being made) and whether appropriate arrangements are in place for the children prior to the application being made.
What’s the difference between separation and divorce?
Before you consider filing for divorce, it’s important to know the difference between a divorce and a separation. Separation occurs when one party communicates to the other that the relationship has ended and they then act upon that communication. Physical separation does not by itself bring to an end the matrimonial relationship – rather, it is the departure from a state of things that is determinative of separation, rather than being physically separated from a person or place (e.g. the former matrimonial home).
A divorce is an Order from the Court that is obtained by one or both parties that confirms that in the eyes of the law, you are no longer married.
You can only file for divorce once you have been separated for a period of 12 months. This can include a period where you’re considered to be ‘separated under one roof’.
Filing for divorce
The court is not interested in hearing whose ‘fault’ the breakdown of the relationship was. Rather, the courts role is to ensure that the requirements for divorce have been satisfied, namely that:
• You and your spouse have been separated for at least 12 months (note: it is possible to be separated but living under one roof);
• There has been an ‘irretrievable breakdown’ of the marriage (i.e.: that reconciliation is no longer possible); and
• Either you or your spouse is an Australian citizen or resident, and that you regard Australia as your permanent home.
However, if you and your partner have been married for less than two years, you will need to wait until you have been separated for two years before you can apply for a divorce.
Alternatively, you will be required to seek counselling from a registered counsellor or seek special permission from the court to apply for the divorce to be granted earlier.
Sole or joint application
You can apply for a divorce by yourself (referred to as a ‘sole application’) or you can apply for a divorce with your spouse (referred to as a ‘joint application’).
If you and your spouse make a joint application or if there are no children under the age of 18 at the time you make the application (whether solely or jointly), you will not be required to attend the divorce hearing.
However, if you make a sole application and there is a child (or children) of the marriage under the age of 18, you will be required to attend the divorce hearing.
This is because the court must be satisfied that either:
• Proper arrangements have been made for any child of the marriage under the age of 18; or
• Special circumstances exist as to why the divorce should be granted even though proper arrangements have not been made.
All divorces will then become final one month and one day after the day the divorce was granted. This is when the Divorce Order is issued by the court (this was previously known as a Certificate of Divorce).
Delays to divorce proceedings
If your divorce runs smoothly through this process, then your divorce should be finalised in a few months, depending on how long it takes to receive a hearing date from the court.
However, there are several points in the process where delays can be experienced. For example, if you file a sole application for divorce, then delays could be caused by you tracking down your partner to issue them with the papers.
Likewise, if problems are discovered with the paperwork or if you haven’t followed the necessary procedural steps, the court will adjourn your hearing to another date, causing a delay. In addition, delays can also be caused if the court isn’t happy with the agreement in place to protect the child.
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. For more information about the divorce process, or to get your application underway, please contact us on 07 3837 5500 or email@example.com