A step by step guide to obtaining a divorce in Australia

Divorce Australia

Relationships can be challenging even under the best of circumstances, so it is not surprising that the COVID-19 pandemic has taken a toll on many marriages. Numerous couples faced – and are still facing – financial strain from job and business losses, resulting in a hothouse of stress. The most recent data shows 49,510 divorces were granted in 2020, recording an increase of 1.9% from 2019 (48,582).

As concerning as that is, divorce is more than just numbers – it is a deeply personal and emotional process, especially if the decision to end the marriage was not mutual. It can be very stressful and one may feel daunted going through the whole procedure. Here is a breakdown of how you can obtain a divorce smoothly with the help of a family and divorce lawyer.

Step 1: Meet the eligibility requirements

To apply for a divorce in Australia, you must meet the following criteria:

  • If you got married overseas, you or your spouse must be an Australian citizen, permanent resident, or have been living in Australia for 12 months immediately preceding the date of divorce application,
  • Your marriage must have broken down irrevocably, or
  • You and your spouse must have been separated for 12 months.

If you and your spouse have been separated but remain living in the same house for the 12 months before applying for a divorce – known as “separation under the one roof” – you need to prove to the Court that you were separated during this time. As for non-Australian citizens or permanent residents, if you have been living in Australia for at least 12 months before applying for a divorce, you need to provide evidence that you have been resident in Australia throughout that period.

Step 2: File the Application for Divorce

Once you pass the eligibility criteria, you must file an Application for Divorce in the Federal Circuit and Family Court of Australia. Although the application form is available on the Court website, it is best to seek advice and assistance from a qualified family lawyer in Melbourne to check the information you have submitted in order to avoid the Court rejecting your application.

You need to keep in mind there are two types of Applications for Divorce:

  • Sole application, which is filed by the party seeking the divorce – the applicant – and then “served” or given to the other spouse – the respondent.
  • Joint application, which is completed by both of the parties and therefore does not need to be “served” on the other party.

You also have to file the necessary documents such as a copy of your marriage certificate, and a copy of your citizenship certificate, passport, or visa. If you have been married for less than two years – with the two-year period calculated from the date of marriage to the date of divorce application – you will need to file a counselling certificate.

Step 3: Pay the filing fees

There is a fee of $940 payable to the Court when filing an Application for Divorce. You or your spouse may be entitled to a reduced fee of $310 if:

  • You hold any cards issued by the Department of Human Services or the Department of Veterans’ Affairs that certifies your entitlement to Commonwealth health concessions, or
  • You have been granted Legal Aid, or
  • You are receiving youth allowance, Austudy or ABSTUDY payments, or
  • You are aged 18 or under or an inmate of a prison or otherwise legally detained in a public institution.

Step 4: Attend the hearing

After you file your Application for Divorce, you will be notified of the date and time of your divorce hearing, as well as the name of the Registrar who will hear and decide your case. Divorce hearings are currently being conducted electronically via Microsoft Teams before a Deputy Registrar or Judicial Registrar of the Court.

You are only required to attend virtually if you have filed a sole application and there is a child of the marriage aged under 18 years at the time of filing; you wish to attend the hearing; either you or your spouse has objected to the divorce being heard in the absence of the other; or the respondent files a Response to Divorce opposing the application.

Step 5: Finalise the divorce

Once the divorce is granted, it will not be finalised immediately. Unless a special order is made by the Court, the divorce will only be finalised one month and one day after the hearing date.

It is important to keep in mind that property settlement (the division of your joint assets and liabilities), finances, and parenting custody matters are separate from the divorce application and need to be dealt with separately. It is best for you to seek advice on these matters from a family lawyer in Melbourne as early as possible to avoid any complications.

Do not be afraid to reach out for advice

Contemplating a divorce is never easy, especially when there are children to consider. However, as intimidating as it may seem, the divorce procedure is merely an administrative one and is pretty straightforward. If you are separated and seeking advice regarding a divorce, please do not hesitate to reach out to an experienced family and divorce lawyer to help advise and guide you through this trying time.

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