Things to know if you want to get a divorce in Australia
Divorce can be a tumultuous and challenging time, particularly when children are involved.
Most people are motivated to minimise the stress, upheaval and uncertainty related to their marriage breakdown; they want to protect their children and reach a satisfactory conclusion as quickly and as smoothly as possible. In our experience as family lawyers in Perth, we have found that this is more likely to happen when individuals understand their rights and obligations at the outset.
Divorce is a separate process (and application) to Family Court processes, such as seeking property orders, or parenting orders. In some other countries, all three processes must occur together, but that is not the case in Australia.
In Australia, the legal system follows a principle of ‘no-fault’ divorce; the grounds for divorce is an ‘irretrievable breakdown’ of the marriage. In other words, the Court does not focus on the reasons leading to the breakdown of the relationship, but it will ordinarily grant a divorce if it accepts there is no reasonable expectation that the separated couple will get back together.
To prove ‘irretrievable breakdown’, the applicant/s need to prove to the Court that they have been separated for at least 12 months prior to filing the divorce application. Exceptions may be made to this minimum period if there are special circumstances.
Separation usually means living apart, but not always. Often, for economic reasons, two parties continue to live under the same roof, but are separated. In those circumstances, the parties will need to provide evidence to the Court, in the form of an affidavit, supporting the fact that they have been separated for 12 months, despite living at the same address.
You can either file an application for divorce on your own or jointly with your spouse. If you are making a sole application, you do not need approval from your spouse, but you will need to deliver (or serve) a copy of the application and other documents to your spouse, with reasonable notice, and be able to provide evidence to the Court that they have received a copy of the divorce application.
Here are answers to some commonly asked questions about divorce in Australia.
Can anyone apply for a divorce in Australia?
An applicant (or applicant’s spouse) for a divorce needs to be:
- an Australian citizen;
- a resident in Australia and consider it their permanent home; or
- ordinarily resident in Australia and have lived in Australia for at least a year before applying for a divorce.
You will likely need to provide a copy of your citizenship certificate, birth certificate and/or passport.
If you were married overseas, you can apply for a divorce in Australia but you or your spouse will still need to meet one of the requirements specified above, and you will need to provide your marriage certificate in English, even if you need to obtain an English translation of it (which then creates a requirement for an affidavit from the accredited translator).
What are the stipulations regarding the 12-month separation?
Couples do not necessarily have to live in separate premises to be considered to be living apart; they can have separate bedrooms in the same house and live independent lives.
If this is the case in your situation, the Court will require evidence that you and your spouse no longer function as a married couple. Affidavits, including from the parties and an independent third party (usually a friend or family member) will be required, who can witness your separate living arrangements.
What happens if we have a break in the 12-month period because of a trial reconciliation?
If the reconciliation is less than three months, the Court will generally allow you to include the months prior to the reconciliation as part of the required 12-month period. In other words, you can resume counting from the time that you separated after the trial reconciliation, and add the two periods together. However, if you reconcile for longer than three months, you will need to start a new 12 month period starting from the time that you split up for the second time.
How soon after a marriage can you apply for divorce?
A person can file for divorce provided they have been married for two years and separated for 12 months prior to making the application (the separation period is included in the two years of marriage).
Special considerations may apply if you have been married for two years or less. Generally, a couple will be required to attend counselling before being allowed to file for divorce and they will need to produce an attendance certificate from the counsellor.
What happens if there are children involved?
If the couple has children under the age of 18, the Court will need to be convinced there are proper arrangements in place for the child or children’s care and welfare before a divorce will be granted. If a suitable parenting plan has not yet been put in place, the Court may delay divorce proceedings until it is convinced otherwise.
It is important to know that the granting of a divorce does not include decisions on parenting arrangements, financial support or division of property. Divorce is simply formal recognition that a marriage has ended.
When it comes to parenting arrangements, separating couples will need to either file an agreement with the Court (if they agree on all the issues) or seek orders from the Court (if they cannot reach agreement). Many separating couples that do not agree on issues settle out of Court through counselling, negotiation, and/or mediation (or a combination of these). These processes are the preferred way to settle disputes and we encourage all of our clients at West Family Lawyers to fully explore these options before issuing proceedings.
Parenting arrangements will generally include decisions on living arrangements, time spent with each parent and extended family, education, extracurricular activities, holiday arrangements and healthcare.
What happens if my spouse doesn’t want a divorce?
Even if your spouse does not want a divorce, you can still file an application provided you have proof that your marriage has broken down irretrievably with no prospect of reconciliation.
You will need to notify your spouse of your application to divorce by way of service of a copy of the application. This will need to be delivered to them in a formal manner, and should occur at least 28 days prior to the Court hearing. If the Court rules in favour and grants the divorce at the hearing, the divorce becomes final a month and one day thereafter. After the hearing the Court will publish a Court order granting the divorce, and confirming the end of the marriage.
How long does it take to get a divorce?
There are no definitive timeframes for a divorce to be granted, but it is likely to take a few months from filing to finalisation.
Do I need a lawyer to get a divorce?
It is not necessary for you to have a lawyer to apply for divorce, but getting legal advice as early as possible can be beneficial in many different ways. An application for divorce can be made online.
Divorce is a significant decision, and it is usually one of the most stressful and difficult times of a person’s life. When children are involved, a marriage breakdown generally becomes a more complicated process. A family lawyer can help alleviate some of the stress and provide assistance during what is usually a very unsettled and emotional time.
Where necessary, a lawyer may help you negotiate the best practical solution for your unique circumstances and will advise on related issues, for example, property orders; people are often unaware that there is a limited time after a divorce in which they can apply to the Family Court for property orders.
We hope you have found this information on getting a divorce in Australia helpful. If you would like professional advice on your unique situation, please get in touch with our caring, skilled and empathetic team at West Family Lawyers or have a look at our comprehensive FAQ section on our website.
Please note, the above guide to divorce in Australia is general in nature and does not constitute legal advice. For specific advice, please contact your family lawyer in Perth.