Divorce is something that happens to many married couples. But knowing how common it is doesn’t make going through it any easier. Divorce is a transition time in a couple’s life, and there can be both emotional and legal challenges to navigate.
You might be facing custody issues, splitting high-value assets, or even wondering how to manage your separation. You might also be struggling with emotional impacts like feelings of loneliness or isolation. Each of these requires expert advice and guidance to see you getting the best outcome for your situation.
Having a good divorce lawyer on your side will help ease you through this transition. Your lawyer will offer you the support, representation, and advice that you need so you can move forward with confidence and dignity.
Divorce is the formal end to marriage. The actual divorce process in Australia is often a fairly straightforward matter, but property settlements and parenting arrangements can become complicated.
In order to get a divorce in Australia, you need to show that you have been separated from your spouse for a period of 12 months and that you have no chance of reconciliation. If you have reconciled with your partner for a period of three months or more, the 12-month period resets.
You may be separated but live under the same roof. This situation often occurs when parents separate but still want to care for their children together while they finalise new living arrangements. For this separation to count towards your required 2 months, there needs to be evidence that the separation is a genuine one.
To officially divorce you will need a court order. To get this the court may require you and your ex-partner to attend the court proceedings. It typically takes about four months from the time you file for divorce for a divorce order to be finalised.
Your ex-partner does not have to agree to the divorce and cannot oppose an application for divorce except in very specific circumstances, such a disagreement with the date of separation. Not wishing to be divorced is not a ground to oppose it.
Divorce under the Family Law Act is on a no-fault basis. The only requirement necessary is that the marriage has irretrievably broken down. This is evidenced by the 12-month separation required prior the application for divorce being filed.
Courts can decline to make a divorce order in certain situation, including if it’s not satisfied with the care and financial support of children of the marriage.
You can only remarry once your divorce order is final. If you wish to remarry you need to ensure you have allowed sufficient time for your divorce to be finalised.
If you’ve been married for less than two years, you’ll also be required to attend counselling with your ex-partner before divorcing. But if your partner won’t attend counselling, you’ll still be able to get divorced.
You will need proper parenting arrangements in place if you have children under the age of 18 before you’ll be granted a divorce order.
The court that has jurisdiction to deal with divorce is the Federal Circuit and Family Court of Australia (the Court). While the Court will grant your divorce order, they encourage parties to handle the other matters – such as parenting and property – privately. If you do need to go to the Court for orders, you’ll need to attempt to settle any issues through mediation first.
The divorce process in Australia is fairly simple. It typically requires only five steps.
There are no legal requirements for separation. Separation occurs when one partner decides to separate, tells the other person, and acts on that decision.
You may lodge your divorce application after you have been separated for 12 months and one day. You can lodge jointly with your ex-partner or by yourself. You can lodge your application and the accompanying documents via the Commonwealth Courts Portal or via email. You’ll also need to pay the required filing fees.
Under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, you are required to serve your divorce papers at least 28 days before any Court hearing. You can skip this step if you have filed a joint application.
The Court has instructions for serving on your ex, including via post or via hand.
Every divorce will have a hearing, however, if you and your spouse have filed jointly, and you don’t have any children under the age of 18, you likely won’t need to attend the hearing. Instead, the process is handled through written submissions.
If you are required to attend the hearing, you can expect that the Court will review your application before granting the divorce order.
Your divorce will become final one month and one day after the date of your hearing. You’ll receive a ‘decree absolute’ in the mail at that time, and you’re now free to marry once again if you like!
When you get a divorce order, this simply ends your marriage. It doesn’t split your property pool, set out parenting arrangements, or indicate whether or how any financial support must be paid. These will need to be handled separately.
Sometimes, one or both partners to the marriage are residing overseas or your marriage took place overseas. This can add complications to your divorce proceedings here in Australia.
If your ex is overseas, but you are filing for divorce, you will need to serve them at least 42 days before the hearing in order to move forward with the divorce. If you are then required to attend the Court hearing, the overseas partner will be able to engage an Australian lawyer to attend on their behalf. In some circumstances, they may even be excused from attending.
You can still get divorced in Australia if you were married overseas in a few situations.
Speak to a lawyer to ensure that these requirements are met including what official translated documents must be filed in the court.
If you have assets that are located overseas, the Court will still consider these to be part of the marital property pool as long as they meet the requirements to form part of the pool generally. The Court can then make orders dividing those assets for the purpose of the property settlement.
However, Australian orders may be challenging to enforce outside of Australia. In some case you may need to seek assistance in the relevant foreign jurisdiction as well. Your lawyer will be able to help you navigate the intricacies of a foreign property division.
Australia will recognise a divorce overseas as long as it was obtained according to the laws of the country where it was granted. Under the Family Law Act, one of the parties to the divorce must have been a resident or citizen or the country or ordinarily reside in the country. It must also be the last place that the couple cohabitated.
As long as those requirements are met, your foreign divorce will be recognised here.
Same-sex marriages have been legal in Australia since 2017, and same-sex couples have exactly the same rights and obligations in marriage as heterosexual couples. This also means they have the same rights and obligations in divorce.
The legal requirements and processes for divorce apply equally to same-sex marriages. This includes no-fault divorce and the requirement that there be a 12-month separation prior to divorce.
LGBTQ+ clients deserve compassionate, knowledgeable legal representation that both provides legal advice and supports and considers their specific and unique concerns, particularly when it comes to divorce. Our team are proud to offer that to our clients.
Divorce in most cases is a fairly straightforward process. The cost varies depending on the filing fees as charged by the Federal Circuit Court of Australia, the time to prepare the application, if there is any dispute in relation to it, and if lawyers are required to attend court.
No. A divorce is the process of legally ending your marriage. It is not a property settlement.
Your property settlement, including whether or not your house will be sold and how, is a separate process. But once you are divorced, there is a 12-month time limit to commence proceedings for a property settlement or to get spousal maintenance if you’re unable to reach an out-of-court agreement beforehand.
Most couples have some shared property – both assets and liabilities. Not all this property will be part of the marital property pool. For example, property that was acquired proper to the relationship or after separation may be retained by the relevant party.
How that property pool is divided will depend on many factors including your contributions – both financial and non-financial – your future needs, such as child care and income earning ability, and any agreements you might have made about your property with your ex.
Spousal maintenance isn’t automatically granted in a divorce. Instead it depends on your unique financial situation, the nature of your marriage and your ability to support yourself. To decide whether or not you will be awarded spousal maintenance, the Court will consider factors like your income, your health, your age, whether you have care of the children and more.
Child custody – or parenting arrangements – are always determined based on the best interest of your child or children. So your parenting arrangements will be unique to the needs of your children and your family.
The Court will require you to work with your ex-partner to come to an arrangement, including attending mediation or some other form of alternative dispute resolution if you aren’t able to agree on your own. If you still can’t agree after mediation, then you will be permitted to go to the Court to seek parenting orders.
Your parenting arrangements will typically cover things like where your child will live, how much time they spend with each parent, schooling arrangements and more. It will also cover any financial support that you or your ex might need to pay.
What is considered a high-net-worth divorce?
Typically, a high-net-worth divorce is where the net worth of the couple is over $5 million, including the family home, and the couple earns over $250,000 per year. We have howeve,r extensive experience in matters involving hundreds of millions.
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We are a committed team of family lawyers dedicated to the swift and dignified resolution of your divorce. We know that divorce can be complicated and emotional, and our Australian team of divorce lawyers are here to ensure your divorce is finalised as quickly and painlessly as possible.
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