Remarrying after a divorce is a significant and often joyful new chapter in one's life. However, navigating the legal and administrative landscape of a second marriage in Australia requires careful consideration. It is important to know that there are legal timeframes and administrative hurdles that must be respected. Overlooking these critical requirements can lead to serious consequences.
This guide outlines the essential dos and don’ts of remarrying after divorce in Australia, ensuring your new beginning is built on a solid legal foundation.
DO: Understand the legal timeframes
The first and most critical rule of remarrying in Australia is to respect the "1 month and 1 day" requirement. Under Australian law, a person cannot legally remarry until this period has elapsed from the date the divorce order is issued.
This specific timeframe is not an arbitrary rule; it exists to allow for any potential appeals to the divorce
order. While a divorce order is typically granted at a divorce hearing, it does not become legally "final"
until this waiting period has passed.
DON'T: Plan your wedding based on assumptions
Don’t make the mistake of booking a wedding and making irreversible plans based on an estimated divorce timeline. While a divorce application generally takes three to four months to process, this is not a guarantee.
Numerous factors can cause delays that are entirely outside of your control. Planning your wedding down to the wire and risking a clash with the legal waiting period can result in the loss of significant deposits and a great deal of unnecessary stress. It is far wiser to wait until the divorce order has been formally granted and the one-month and one-day waiting period has passed before finalising any wedding arrangements.
DO: Prepare for potential delays
Understanding what can delay a divorce proceeding is crucial for realistic planning. These "derailers" are designed to ensure the legal process is fair and thorough.
If you have made a sole application for divorce, you must formally serve the other party with the application. The other party then has 28 days to respond if they are in Australia, or 42 days if they are overseas. An uncooperative or acrimonious relationship can lead to complications in this step, potentially delaying the process. A joint application, where both parties agree to the divorce, can be a
smoother and faster path.
The court's paramount concern is the welfare of any children under 18 from the marriage. The court will not grant a divorce order unless it is satisfied that proper arrangements for the children's care and financial support have been made. Any doubts regarding these arrangements will cause a court to delay or even refuse the divorce until the issues are resolved.
If your marriage was for less than two years, the court requires a certificate confirming that you have attended marriage counselling. This is a mandatory step that must be completed before the court will hear the divorce application.
DO: Understand the legal status of overseas marriages
If your previous marriage was conducted overseas, you must understand whether it is legally recognised in Australia. A foreign marriage is recognised here if:
- It was officially recognised and recorded in the country where it took place.
- Both parties were over 18 years of age at the time of the marriage.
- Neither party was married to another person at the time.
If your overseas marriage meets these criteria, it is considered valid in Australia, and you must formally obtain an Australian divorce order to legally remarry. If the marriage does not meet these criteria, it is not recognised under Australian law, and therefore, you are not considered married and do not need a divorce to remarry.
DON'T: Try to bypass the law by marrying overseas
While the idea of a spontaneous overseas wedding to circumvent Australian legal timeframes might sound romantic, it is not a viable or legal solution.
Every country has its own requirements for solemnising a marriage, and most will require proof that there is "no impediment" to the marriage. A key document for Australians marrying overseas is a Certificate of No Impediment to Marriage (CNI), which is issued by the Department of Foreign Affairs and Trade (DFAT) and confirms that you are legally free to marry.
Attempting to marry overseas without the necessary documentation could leave you in a legal limbo
and, in the worst-case scenario, lead to the crime of bigamy.
DO: Revisit your estate planning
A crucial consideration that is often overlooked is the impact of divorce on your estate planning. In Australia, a divorce order automatically revokes any existing will you may have, unless it was made "in contemplation of divorce."
This means that after a divorce, you are effectively without a will, and your estate would be distributed according to the rules of intestacy. To protect your assets and ensure they are distributed according to your wishes, you should create a new will immediately after your divorce. Likewise, after remarrying, you should update your will again to reflect your new marital status and provide for your new spouse and family.
DON'T: Risk the crime of bigamy
The act of marrying another person while still legally married to your first spouse is a serious crime known as bigamy. In New South Wales, the maximum penalty for a conviction of bigamy is a prison term of up to five to seven years.
It is a strict liability offence, and ignorance of the law is not a defence. It is also important to note that a person who knowingly marries someone who is already married is also guilty of a crime. This highlights the absolute importance of ensuring your divorce order is final and the one-month and one-day waiting period has passed before you enter into a new marriage.
Key takeaways
Remarrying after a divorce must be approached with patience and a clear understanding of the legal
requirements. Ensure your paperwork is in order by consulting divorce and remarriage experts from Owen Hodge Lawyers. By considering all factors, you can protect yourself and your loved ones from future complications. Ultimately, a new beginning built on a foundation of legal compliance is the best way to ensure a happy and secure future.
