Separation and Divorce

SEPARATION AND DIVORCE

THE SEPARATION PROCESS

Separation is when one or both people in either a de facto relationship or marriage, communicate that they have made a decision to end the relationship.

If you are in a de facto relationship, while you do not need to apply for a divorce, all of the other steps that a married couple need to do upon separation, apply to you as well.

If you have children together, one of your first concerns will likely relate to how time will be shared with the children between you. For more information about children and parenting matters, go to this page here.

Regardless of whether you have been in a de facto relationship or marriage, you can commence the process of financial division, otherwise known as a financial settlement or property settlement, any time from the date of separation. There are some important timelines to be aware of in relation to dividing your property. For more information about finances and property division, go to this page here.

If you are married, read on below to understand the specifics around the divorce application process in Australia.

If you are in a de facto relationship, jump to this section here.

From the moment you separate you are able to begin putting arrangements in place for important issues including shared care arrangements and financial separation including a property settlement. These issues are not linked to the granting of a divorce.

If there are children under the age of 18 from the relationship, the Courts will want to see that appropriate arrangements for their care and welfare have been made, before a divorce can be granted.

The property division process and maintenance can begin as early as the day of your separation. However once the divorce is finalised, if you haven’t already finalised your property settlement, you have only 12 months to have that finalised (from the date of separation). Learn more here.

We understand that it can be difficult to make a decision about selecting the right people to help you which is why we would like to make it a bit easier for you. If you decide to work with us after your initial appointment, we will credit the cost of the appointment towards your fees, essentially making your initial consultation free.

This is our way of demonstrating our commitment to providing excellent service. We also offer fixed fees for some services as well as convenient payment options. Ask us for more information about these options in your first meeting. We look forward to assisting you.

GETTING A DIVORCE IN AUSTRALIA

BE CLEAR ABOUT YOUR DATE OF SEPARATION

It is important to know the date of separation, and for both parties to the relationship to be clear about the exact date of separation.

Unlike moving forward with parenting arrangements and the division of your property, you must wait to apply for divorce. An application for divorce can only be accepted when 12 months and 1 day has passed from the date of your separation. 

If you have been married less than two years, then there are some additional requirements that the Court has in place, before an application will be accepted.

In order to apply for a divorce in Australia, you must have been separated for twelve months or more. If you reconcile for at least 3 months at any point in that window and decide to separate again, then the 12 months waiting period will start again.

If you still live under the same roof but wish to prove separation to the Courts, you will need to give evidence of an open and complete break from your marital relationship. Some examples of changes to the relationship include living in separate rooms, owning and operating separate bank accounts, a reduction of shared activities and outings together or as a family.

If you were married overseas, it is still possible to apply for a divorce in Australia as either you or your spouse meet one or both of the following criteria.

  1. You or your spouse are an Australian citizen or resident.
  2. You or your spouse regard Australia as your permanent home.

You will also need to submit a verified copy of your marriage certificate with your divorce application. If the marriage certificate is not written in English, you will need to have it translated and submit an affidavit from the translator about the accuracy of the translation.

FILING AN APPLICATION FOR DIVORCE

If you both agree to divorce, you can submit a Joint Application for Divorce. If one person does not agree to their spouse’s decision to end the marriage, then a Sole Application can be made. If you make a sole application, then documents relating to the application, along with information about a Court hearing date, are to be served to the other spouse. 

If you have filed a Joint Application, you will each receive notification of the Court Hearing. This is where, if your application is correct and complete, where the Divorce Order is granted.  If your application is incomplete or inadequate in some way, you will be informed at the hearing what will be required of you to meet the requirements and a subsequent hearing date is set. 

This is why it is helpful to have a family lawyer help you with your application or, at the very least, review your application before filing it with the Federal Circuit and Family Court of Australia. Seeking advice from a family lawyer beforehand is wise to ensure you can avoid having to delay the process and resubmit your application, along needing to prepare additional documents that are required with a resubmission.

If you have filed all of the necessary documents and the Court is satisfied with them, and served your former spouse the relevant documentation at least 28 days prior to the scheduled Court Hearing (where Divorce Orders are granted), it takes approximately 6 to 8 weeks.

If your former spouse is living overseas, then you will need to ensure that they are served with the relevant documentation at least 42 days prior to the Court Hearing.

It is possible to proceed with a divorce even if you do not know where your spouse is. You must be able to show the Courts that you have made reasonable attempts to locate them but were unsuccessful. This process can be more costly and cause the divorce process to take longer than the length of time usually predicted.

If your spouse wishes to oppose the divorce they need to follow the required procedure. Simply failing to sign papers or refusing to acknowledge the divorce process will not be sufficient to stop the divorce proceedings.

To formally oppose the divorce, your spouse must file a Response to the application for divorce and have that reponse served to either yourself or your lawyer before the date of your Court hearing. They must then attend the scheduled hearing and it will then be the decision of the Court as to whether the divorce application is granted or not at the first scheduled hearing.

There are issues that can complicate the proceeding of a divorce through the Courts, for example if there’s dispute over the date of separation. However there are very few grounds to prevent a divorce being granted. Your spouse does not need to sign papers or co-operate in the divorce proceedings for a divorce to be approved.

If a divorce is uncontested, the cost to make an Application for Divorce is currently $990 plus Court filing fees (subject to change). Legal fees are costed out differently from law firm to law firm. That being said, there are a number of factors that can increase costs including any delays to the process, such as needing to resubmit information if incorrect or insufficient. Reach out to our team to learn more, including fixed fee options that may be available to you.

You may file an application for divorce to the Courts if you have been married for less than two years, however you must attend mediation with your spouse to discuss the possibility of reconciliation. The mediation must be conducted by an approved family mediator.

If reconciliation was not possible and you still wish to file for divorce, then you need to include a certificate from the mediator in your application to the Court, that indicates you attended mediation and attempted reconciliation. There may be times when mediation is not possible, in these cases you must submit an Affidavit with your application for divorce that sets out the reasons why. For example, there may be a Protection Order in place, a history of domestic violence, or one party to the marriage may not be able to be located.

From the date you file your application for divorce to the Courts, to the date your divorce is granted by the Courts, you can generally expect to be waiting 4 months. If there are issues serving your spouse the divorce application, then the 4 month period can be longer.

THE DIVORCE HEARING

If you have filed a Joint Application, you do not need to be at the hearing if you do not wish to. However, if you do, you can be in attendance via phone and do not need to attend the Court Hearing in person. This is specific to applications for divorce only.

However, if you have filed a sole application and you have a dependent child (under 18 years), then you will be required to attend the hearing. Attendance may be required in other circumstances, such as if you have filed a Sole Application and your former spouse has filed an application opposing the divorce.
Your family lawyer will inform you of what will or won’t be required of you.

Upon the divorce being granted, it will become final one month and one day later. You can then access the Divorce Order (formal documentation and proof of divorce) online through the Commonwealth Courts Portal and download a copy to keep for your records.

APPLYING FOR DIVORCE?

There is more involved in resubmitting divorce applications, so it is more expensive than if you first sought the support of a family lawyer.

Not to mention the time lost.

GET THE RIGHT ADVICE

When selecting the right source of legal advice, you need experienced family lawyers who have worked across the many areas of family law. Our family law team has that experience and insight.

OTHER FREQUENTLY ASKED QUESTIONS

It is possible to change a child’s surname after divorce. If both the child’s parents are listed on their birth certificate and both parents have ‘Shared Parental Responsibility’ for the child, then permission will need to be given by both parents for a change of surname. For advice specific to your circumstances, reach out to our team to learn more.

In relation to your Will, you should make changes to your Will, and remove your former spouse as your Power of Attorney &/or Enduring Guardian. It is important to get advice about how to manage your Will after separation and to ensure the beneficiary of your superannuation and life insurance is reviewed. Our Wills & Estates team can provide advice about your best next steps. Visit this page here.

Superannuation is typically considered during the financial disclosure component of a property settlement. It is typically taken into account as property. To understand how your superannuation will be considered, speak to our experienced team for more information.

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HOW TO PREPARE FOR SEPARATION AND DIVORCE

There are likely to be many questions swirling around in your mind. Some of the common questions we answer for people who are either already separated or even yet to separate include:

  • Should we separate now or later?
  • Should I move out or stay in the house?
  • How much does divorce cost?
  • What needs to happen first?
  • What am I/they entitled to if we separate?

Given that your family and financial circumstances are different to others, it is important to seek advice that takes into account the ages of any children you have, how you have each contributed financially and non-financially during your relationship and more. 

Often people choose to hold off on reaching out to a family lawyer early on because they believe that speaking to a lawyer equals ‘Going to Court’ or ‘Lawyering Up’. When in fact, the opposite is true. Seeing a lawyer is about getting answers to those questions that are up to date and the most accurate, specific to your personal circumstances.

And you needn’t wait until you are separated either. Many times people seek our advice before they separate, to be informed and prepared for what may be ahead of them.

You might only need one appointment, and never need to make another appointment again. What we do for our clients is give them clarity about any decision making they have ahead of them.