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, if procedural issues arise, such as being unable to locate and/or serve your spouse with a copy of the divorce application, then the process can take a lot longer.
What is not otherwise included in this estimate is the timeframe leading up to the filing of an application for divorce – that is, the preparation of the application itself, as well as the signing of same.
For this reason, you should never arrange to remarry without first making sure that you have allowed enough time for your divorce to be finalised and until you have actually received your Divorce Order from the court. In Australia, it is illegal for you to remarry before a divorce order is issued by the court.
How long do you need to be separated before you can apply for a divorce in Australia?
Under Australian law, you and your partner must be separated for 12 months before you can make an Application for Divorce.
Separation occurs when one party communicates to the other that the relationship has ended and they then act upon that communication.
Physical separation is not a necessity and also 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).
Do you have to wait two years to get a divorce?
If you and your former partner have been married for less than two years, it is still possible to make an application for divorce. However, you will usually need to attend counselling and file a counselling certificate with your divorce application.
If you are unable to attend counselling with your spouse, you will need to file an affidavit explaining why. For example, if you haven’t attended counselling because you cannot locate your partner, you will need to explain the steps you’ve taken to locate them. Alternatively, if there has been a history of domestic violence in the marriage, you may be asked to explain why you believe that attending counselling with your spouse isn’t safe or appropriate.
Filing for divorce
Since 1975, Australia has been a ‘no fault’ jurisdiction when it comes to divorce. The only requirements that the Court needs to be satisfied of to grant a Divorce Order are that:
- You and your spouse have been separated for at least 12 months (and as noted above, it is possible to be separated but remain physically living together 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 regard Australia as your permanent home.
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.
How long does it take to finalise a divorce after filing papers?
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 and/or spousal maintenance, 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.
We’re here to help clients navigate their way through a tough time, and to help them reach the next chapter of their lives.