Blog Layout

The Divorce Process Explained

Equilaw • Jun 25, 2017

The Divorce Process Explained

The idea of divorce is well known, as is the established principle of no-fault divorce in Australian law, but less is known or understood about the mechanics surrounding what is actually done and the steps involved.


In this article we explain the process in simple terms.


Today in Australia a court does not consider why the marriage ended. The only ground for divorce is that the marriage has broken down irretrievably. That is, there is no reasonable likelihood that the parties will get back together. A divorce may be obtained in either the Family Court of Australia or the Federal Circuit Court (or Federal Magistrates Court).


Separation


In Australia, the parties must have been separated for at least 12 months prior to applying for your divorce.


If the parties have separated but remained living under the same roof for any period (or are currently living under the one roof), they will need legal advice because there are further requirements that the Court will consider. For example, parties married less than two years who want to divorce must attend counselling with a family counsellor or nominated counsellor to discuss the possibility of reconciliation with their spouse, or if they have not attended counselling, seek permission of the Court to apply for a divorce.


Applying for a divorce


To apply for a divorce the parties must first satisfy the court that they have a valid marriage. A marriage certificate, with a sworn translation into English (if necessary) is needed. If no marriage certificate is available, the court may require the applicant to provide some alternate evidence of the marriage prior to granting divorce.


A person can apply for a divorce in Australia if either party regards Australia as their home and intends to live in Australia indefinitely, or they are an Australian citizen by birth, descent or by grant of Australian citizenship, or ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.


In addition, they must satisfy the Court they have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life. It is possible to live together in the same home and still be separated.


The process for De facto relationships


The law requires that people in a de facto relationship (who may be of the same or opposite sex) had a relationship as a couple living together on a genuine domestic basis. However, their relationship is not a de facto relationship if they were legally married to one another or if they are related by family.


Arrangements for any Children


The court will not grant a divorce in Australia unless it is satisfied that appropriate arrangements for any children are in place. That does not mean those arrangements are formal, nor does it mean that there is no dispute, but rather that at the time of the divorce hearing, the children are being appropriately cared and provided for.


The Court hearing


As mentioned above the only ground for divorce is that the marriage has broken down irretrievably and there is no reasonable likelihood that the parties will get back together.


There are circumstances where the parties do not need to attend Court. The party applying for a divorce must attend the divorce hearing where they made the Application for divorce themselves and/or where they have children who are under 18 years of age.


If the parties do not have children under 18, or if they made a joint Application for divorce, they can both choose not to attend the divorce hearing.


A party can only oppose the divorce where there has not been 12 months separation as alleged in the application, or the Court does not have jurisdiction.


Divorce hearings are generally quite brief. The hearing is usually conducted by a Court official known as a Registrar. The Registrar may ask the applicant questions about the information in their Application or about the service of the Application on the other party.


Where young children are involved, the Registrar may ask about arrangements for the children, such as which parent they live with, how often they spend time with the other parent and how they are financially supported.


If the Registrar is satisfied that the grounds for divorce have been established and that the Application has been properly served on the other party (if your Application was not made jointly), the Court will grant the divorce.


The divorce order will become final one month and one day from the date of the hearing, at which time a Divorce Order will be sent to you and your former spouse (if they have provided their address).


What next?


It is important to note that the granting of a divorce does not decide issues about property and maintenance or parenting arrangements for the children.


If parties want to make arrangements about these issues they can make an agreement with their spouse and file it with a court, or seek orders from a court if they cannot reach an agreement. However it is prudent to seek advice from an experienced lawyer.


For people wanting to remarry they should not plan to remarry until the divorce order is finalised. In most cases, this is one month and one day after the divorce hearing. But do not assume the divorce will be granted at the first court hearing as there may be additional evidence required. So it is best to allow more time.


Whilst it is possible to act without legal representation when applying for a divorce, many people find that they do not have the time to devote to this process and prefer to undertake the process with a lawyer highly experienced in divorce law who can provide advice and assistance at any stage of the divorce process.


If you know someone who could benefit from this advice please suggest they contact us on 02 6542 5566 or email michaelobrien@equilaw.com.au.

By Equilaw Solicitors Client 09 Dec, 2023
Going through a divorce is a stressful time and it is understandable that you may want to get through it as quickly as possible. Divorces can be complicated, and it is important that all the right procedural steps are taken. We recommend instructing a Solicitor to make it a smooth process. We understand that divorce comes with a number of questions and concerns. How long do I need to wait before I can file an application? How long does the process take? How much will it cost? Equilaw Solicitors can provide you with advice, support and answer all of your questions you could have. Give our friendly team a call on 02 6542 5566 . Liability limited by a scheme approved under Professional Standards Legislation. This newsletter is intended to provide general information. You should obtain professional advice before you undertake any course of action.
By Equilaw Solicitors Client 09 Dec, 2023
Mobile phone use is so integrated into our lives. We may not even realise how often we’re using them. It can be tempting to use our phones while driving to listen to music, scroll social media, text and talk to each other. However, touching a mobile phone while driving is illegal. Driving is a complex task. Anything that distracts you by taking your mind or eyes off the road, or your hands off the wheel, not only compromises your safety, but puts everyone else on the road at high risk. Being distracted increases your chances of having a crash. It slows down your reaction times and puts you in danger of failing to see hazards such as traffic lights, stop signs or other road users. Make sure you know the rules about mobile use while driving. For more information visit https://roadsafety.transport.nsw.gov.au/stayingsafe/mobilephones/know-the-rules.html The better option is to pull over in a safe place if you need to use your mobile phone. Otherwise, the next best thing is to use handsfree options, such as a cradle or Bluetooth linked to your car. If you have been caught using your phone or caught by a mobile phone detection camera and need legal help, contact our friendly team on 02 6542 5566 . Liability limited by a scheme approved under Professional Standards Legislation. This newsletter is intended to provide general information. You should obtain professional advice before you undertake any course of action.
By Equilaw Solicitors Client 09 Dec, 2023
For most of us, Christmas is a time to see family and friends, swap presents and stories and enjoy each other’s company. Christmas holidays can be a time of mixed emotions, particularly for families experiencing divorce or separation. The holidays can bring stress and conflict and be challenging for both parents and children as they adjust to a changing family dynamic. DO’s Communicate with the other parent for spending time with the children over the Christmas period and school holidays. Follow the terms of any Parenting Plan or Consent Order. Consider alternating Christmas Eve/Christmas Day so that each parent has an opportunity to have either Christmas Eve or Christmas Day with the children. Allow the children to video call or speak to the parent they are not spending time with to share in their excitement. Arrange a Family Dispute Resolution Conference (Mediation) with the other parent if you have not been able to reach any agreement or if you want to change the current parenting arrangements. Arrange to formalise any custody and access arrangements by way of a Parenting Plan or Parenting Order. Get Family Law legal advice if you are contemplating separating or have separated. Follow the terms of any Domestic Violence Protection Order. If you breach the terms of a Protection Order this is a criminal offence. Ask your children what they would like to do. Give them input and some control over the process. DON'Ts Don’t commit to events involving the children’s attendance such as holiday camps holidays away or overseas until discussing this with the other parent. Don’t take your children overseas without the written agreement of the other parent if you have a Parenting Order in place which doesn’t allow for such travel or if an Application for a Parenting Order has been filed in the Court. Don’t change your plans at the last minute. If you and your former partner have agreed on a plan, only change it if you both agree. Don’t run out of time. If you have a time limit approaching for property settlement or maintenance matters file court proceedings within the time limit. Don’t commit any acts of family or domestic violence including against your partner or children and do not expose your children to domestic violence. Don’t denigrate the other parent in the presence or hearing of the children. Don’t relocate the children’s residence without the consent in writing of the other parent or without a court order. Liability limited by a scheme approved under Professional Standards Legislation. This newsletter is intended to provide general information. You should obtain professional advice before you undertake any course of action.
More Posts
Share by: