Divorce In Australia: An Overview

divorce

A divorce is a legal action that spouses take to formally terminate their marriage.

We understand that the breakdown of a marriage can be a challenging and emotional experience. That’s why Rockwell Bates is here to help make the divorce process as simple and straightforward as possible so you can focus less on the complexity and more on your healing.

How to Apply for Divorce. How Long Does it Take?

In Australia, partners must be separated for over a year before they can apply for a divorce. 

Once a divorce is granted by the Court, it will be finalised one month and one day later. The day after finalisation, you’ll be able to access the divorce order through the Commonwealth Courts Portal

Filing the Application for Divorce Form

A solicitor can prepare and lodge your divorce application for you, or you can do it yourself by registering through the Commonwealth Courts Portal. Here, you’ll be able to create your court file, upload your documents, and ultimately receive the final court order. 

A divorce application can be filed as either a ‘joint application’ with your spouse, or as a ‘sole application’ where just one person applies. 

Swearing the Application to a Lawyer

Once your Application for Divorce form is complete, the next step is to swear (or affirm) the form in the presence of a lawyer or other authorised person. Who classifies as an authorised person can vary, so be sure to check the relevant legislation in your state or territory before choosing a person to witness your signature. 

Serving the Application for Divorce

When filing for divorce as a sole applicant, the Application for Divorce needs to be served on the other party. If your spouse is in Australia, this must occur 28 days before the court hearing, or 42 days before the hearing if they’re overseas. 

You can serve divorce documents by post or by hand. When serving by hand, you cannot serve the documents yourself, so you’ll need to arrange for a person over the age of 18 to do it for you. The server can be a family member, a friend, or a professional process server. 

If, for some reason, you cannot serve the documents (such as when your spouse’s whereabouts are unknown), you’ll need to apply to the Court for a conditions of service order. 

Eligibility: Can I Get Divorced?

To be eligible for divorce in Australia, there are several requirements you must satisfy. 

Australian Citizenship or Residency

You must be within the jurisdiction of the Federal Circuit and Family Court of Australia. There are several ways of meeting this requirement:

  • You were born in Australia or hold a grant of Australian citizenship
  • You live in Australia and regard Australia as your permanent home
  • You ordinarily live in Australia and have done so for at least 12 months prior to the divorce application

If you’re currently living overseas, you can still file for divorce as long as you were born in Australia or are a citizen by descent, though you’ll need to have a current Australian address.

No Possibility of Reconciliation

At least one spouse must believe that there’s no reasonable possibility of reconciliation. 

Proof of an attempt to reconcile is not required; however, if you’ve been married for less than two years, you’ll need to attend counselling with a family counsellor. You’ll then obtain a certificate as proof of your attendance. 

In special circumstances, such as when there are allegations of domestic violence, the Court may grant you permission to apply without this certificate. 

Proof of Separation for a Year

Prior to a divorce, you and your spouse must have been separated for at least 12 months and 1 day. 

Separation typically means living apart, though it’s also possible to be ‘separated under one roof’. This is when spouses separate but continue to share the same home for days, weeks, months, or even years. 

The Court may consider the following as proof of separation under one roof in divorce cases: 

  • Separated finances
  • Changes to sleeping arrangements
  • Reduced attendance of shared activities
  • If and when friends and family were informed of the separation

Provide a Marriage Certificate

To dissolve a marriage, you must first be able to supply a marriage certificate. 

During your application, be sure that the names you’re providing are identical to the names on your marriage certificate.

If you don’t have a copy of your certificate, you can apply for a replacement copy through Births, Deaths and Marriages in the state or territory where you were married. If you were married overseas, you’ll need to obtain a copy of the certificate from the relevant authority in that country. For marriage certificates that aren’t written in English, you’ll need to attach both the original and a translated version to your application. 

How Are Assets Divided in a Divorce?

How assets are divided in a divorce isn’t something that will be determined in the initial court hearing.

If both parties can agree on how property should be divided, you can apply for consent orders in the Family Court, or enter into a binding financial agreement. If you can’t reach an agreement, you may need to take these matters to the Family Court by applying for financial orders.

Property Settlement

The term ‘property settlement’ refers to the division of property between spouses upon separation. Discussions surrounding the division of assets can begin as soon as a couple separates. 

Keep in mind that assets won’t automatically be split 50/50. Many factors will need to be considered to ensure that property is divided appropriately. 

The property settlement process can typically be broken down into four key steps: 

Step 1: Value assets and debts

Each party must provide full and frank disclosure to give a complete overview of all assets and debts, often through the sharing of documents.

Step 2: Assess contributions to the relationship

This takes into account financial contributions such as income, non-financial contributions such as home renovations, and contributions as a homemaker or parent. 

Step 3: Consider financial commitments and income

Adjustments will need to be made based on earning capacity and financial commitments such as child custody.

Step 4: Is the overall outcome ‘just and equitable’?

Finally, the court will look at the overall picture to ensure that the division of property is appropriate, or ‘just and equitable’. 

Mutual Debt

So how is mutual debt divided during a divorce? Generally speaking, a Court takes the position that any debt accrued during the relationship was of mutual benefit and had the consent of both parties. However, in instances where the debt was incurred wastefully or for the benefit of just one party, it may be discounted from the total asset pool and therefore won’t be considered mutual debt. 

This may be the case for a gambling debt or debt accrued in the pursuit of an extra-marital affair. Such debts will instead be handed to the individual who incurred them. 

Child Custody

If both parties agree on child custody after a divorce, there’s no need to take the matter to Court. If it does go to Court, however, the statutory presumption is that ex-spouses will share joint parental responsibility. This presumption can be rebutted if it conflicts with the best interests of the child, such as in cases of family violence or child abuse. 

Two primary factors will help the Court decide what’s in the child’s best interest:

  • The benefit of having a meaningful relationship with both parents
  • The need to protect the child from physical or psychological harm as a result of abuse, neglect, or family violence

Additional considerations may include: 

  • The views of the child
  • The nature of the relationship with the parent
  • Whether the parents are committed to encouraging an ongoing relationship between the child and the other parent
  • Each parent’s ability to provide for the child

How to Divorce When the Other Person Refuses

In Australia, the Court can grant a divorce order even when one spouse opposes it or refuses to sign the documents. 

As long as the Court is satisfied that the marriage has ‘irretrievably broken down’, and that the parties have been separated for at least 12 months, you can file a divorce application as a sole applicant. 

If you make a sole application, you must be able to prove that the application has been served to the other party, so it’s best to do this by hand.

For More Legal Advice Regarding Divorce, Book a Consultation with Rockwell Bates

We understand that a divorce can be distressing for all parties involved. That’s why we strive to make the process as easy and stress-free as possible. For expert advice and guidance during this trying time, organise a consultation with one of our experienced divorce lawyers. We’ll be with you every step of the way.

Adam Levine

With Over 25 years private practice and investment banking experience, coupled with experience gained in the private investment sector, Adam is one of Australia’s leading lawyers in the area’s of Private Equity, Mergers & Divestments and Deal Structuring.

Managing Director