Marriages are a wonderful thing. They can also be complicated, and there may come a time where the relationship begins to fall apart and things don’t look like they are going to work out anymore. The truth is, things don’t always go as planned, in fact, the divorce rate in Australia for 2019 sat at 1.9%, with 49,116 marriages being granted divorce.
So, how do you apply for divorce in Australia? Before we get to that, you’ll need to know about the divorce laws in Australia. This easy guide gives you simple answers to complicated questions on everything you need to know, from divorce process and timeframe, to separations, living arrangements, and entitlements.
Let’s get straight into it.
What are the requirements for divorce in Australia?
The divorce process itself isn’t actually that complicated once you know what to expect and what actions you need to take to get the ball rolling. To successfully file for divorce you must meet the following:
- You and your former partner must be separated for 12 months and 1 day
- If you have reconciled with your partner during this time, then the 12 month period will restart.
- Marriage has broken down beyond repair, with no reasonable likelihood that you will get back together.
- Have been married for more than 2 years, or else have attended the necessary counseling to meet the requirement of the family Court before filing for divorce.
- Are an Australian citizen by birth, descent or grant of Australian citizenship, or lived in Australia for more than 12 months.
How long does divorce take in Australia?
Separation and divorce even in the simplest of cases, can be a lengthy ordeal. Although you want out of the relationship ASAP, you need to think about property settlement, living arrangements, who the children will live with, among other things. Provided you meet the divorce requirements mentioned above —
Divorce in WA can take around 4 months for the Courts to officially grant it.
This is from the moment you first applied for divorce in Court till the Court issues and finalises the divorce order.
It’s important to understand that everyone’s situation is different and some may take longer than others. Divorce applications can get a little complicated if you have trouble locating or contacting your former partner, especially if you plan to remarry.
What if your partner doesn’t want a divorce?
If your former spouse wishes to oppose your divorce, then they are required to file a response to your application, which needs to be served to either you or your family lawyer prior to the hearing date.
There are very few scenarios where you’re able to oppose a divorce application. The most common reasons for opposing divorce generally include a dispute over the date of separation and does not satisfy the 12 month separation period. However, there are other grounds, for example, the marriage not being valid.
That said, things such as failing to reach an agreement on property settlement or parenting arrangements are not grounds for opposing a divorce.
However, divorce cases that involve children can complicate things and lengthen the divorce process in Australia. Suitable arrangements must be made regarding the care of instances involving children under the age of 18.
Can you get a divorce without the other person signing in Australia?
In other words, what if you cannot locate your spouse to serve them with a divorce application? In short, you can still apply to the Court for divorce to proceed.
But, you need to be able to prove to the Court that you have exhausted every possibility in contacting your spouse to inform them of your application.
An application for divorce must be served to the other party so they are aware of the application prior to the divorce hearing. On the chance you’re unable to contact your former partner, an order can be made for the application to be served on a close associate or family member of the other party.
What if you do not want a divorce?
If the requirements for divorce; marriage has broken down beyond repair and there is no chance of reconciliation, and the 12 month separation period has been met, then, even if you oppose the divorce, your former partner can apply for a divorce.
What if you haven’t been married for more than 2 years — can you still get a divorce?
If you and your partner have been married for less than two years, you will both need to attend a mediation session or counselling approved by a Court. Only then, will you be able to apply for divorce together with a certificate provided by your counsellor.
How long after divorce can you remarry?
Exactly one month and one day after your divorce has been granted in Court. It’s important to remember that it is illegal to remarry before your divorce becomes final as this is is considered bigamy. It’s best to allow yourself more time between the granting of your divorce and your remarriage date just in case things go wrong, i.e. you can’t locate your ex partner.
Who gets to stay in the house during separation — Can you both live in the same house during separation?
What if you have been living together during the separation period? You can be separated and still live in the same house as long as the basic requirements of separation are being met and can be proved, including:
- living in separate rooms within the house,
- separate bank accounts, and
- no socialising or sharing meals.
If you’re separated and still live together you will need to file for an affidavit to support your separation while living under one roof. You may also need to file for an affidavit by a friend, neighbour or family member for third party evidence; to show you and your spouse are in fact separated, despite living together.
Can you get divorced in Australia if you got married overseas?
If you were married overseas you may still apply for divorce in Australia provided you meet the following criteria:
- an Australian citizen by birth or descent
- an Australian citizen by grant or permanent residency
- regard Australia as your home and intend to live in Australia indefinitely
- have lived in Australia for at least the last 12 months
You will also need to provide a copy of your overseas marriage certificate. If it is in a foreign language it will need to be translated, with the translated copy used when filing for divorce.
In a divorce, who gets what in Australia?
What are you entitled to in a separation? Is your partner entitled to ½ the house? There are a lot of common misconceptions of who gets what in a divorce — “everything is split 50/50; you have to go to Court for property settlement”. First of all, it’s important to understand that getting a divorce does not determine or resolve who gets the house or kids.
Property settlement, financial settlement and parenting matters are far more complicated than a divorce application. For instance, property settlements must be filed within 12 months of your divorce being granted.
So, what are you entitled to in a separation or divorce?
- Real estate
- Bank accounts
- investments , i.e. shares or stocks
- Crypto currencies
- Child support and spousal maintenance
How much does a divorce cost in Australia?
To answer this question is to answer how long is a piece of string. There are many factors that contribute to the cost of divorce such as divorce fees paid to the Courts, divorce lawyer fees, mediation costs, and other expenses.
- Initiating application fee ranges from $365 to $720
- The filing fee for an Application for Divorce is $940
Should you consider a joint application for divorce?
A joint application allows you and your spouse to prepare and file a joint application for divorce together. This means that neither you or your former partner needs to attend the divorce hearing unless there is a child under 18 years old. It also means that neither spouse needs to be served with the divorce application.
Joint divorce applications are quicker and more cost-effective, and is why most people choose to file a joint application.
How to file for divorce in Australia?
Separation and divorce is never an easy decision to come to, but it can be a simple and affordable process with the right legal advice and support. Before you file for divorce, it’s best to seek legal advice from an experienced family lawyer in Perth.
Starting with a free consultation, this is the perfect time to tell our family lawyer everything about your current situation and any concerns you may have. If we are able to assist you further, you will receive a detailed legal plan of what you’re entitled to, the possible outcomes, and what can be achieved.
Let the friendly team at Savannah Legal take care of your family law issues and lift the burden off your shoulders.