Unhappily ever after, between a third and half of all marriages in Australia end in divorce. SAHM guides you through how to get a divorce in Australia.
Prior to World War II, Divorce was rare. The highest number of divorces was recorded in 1976 (63,230), reflecting the formalisation of some long-term separations following the introduction of the Family Law Act in 1975. Since then, the divorce rate has mostly fluctuated between 28,000 and 35,000 per year, with a spike occurring in the mid-1980s. The rate has fallen in the most recent decade.
Every Divorce is Different…..
Every divorce is different and has a different set of circumstances. If you and your ex-partner are civil and can keep communicating, divorce can be relatively smooth. However, most relationships don’t end well. Throw in children and property and things can get rather sticky.
The First Steps to Divorce:
Couples first need to be separated for a period of one whole year before formally applying for a divorce. But this separation needs to be formalised. Whether your ex-partner agrees to a divorce or not, you need to either email or mail a letter (with copies) stating that you are separating and the date, with your intentions to seek to divorce. This piece of paper can help you prove to both the Government you are separated, and if your spouse chooses to contest the separation in court.
Usually, one party will choose to leave the domestic home. But not all couples can afford to do so. If you both choose to live under the same roof, you will need to prove that you are sleeping in separate rooms and are living independently of each other. Sometimes other family members will be required to sign a Stat Dec or similar to say you have been living separately.
What Can You Do During the Wait:
The time between separation and divorce is turbulent. But there are a few things you can do during that time to make the new situation resolve easier when your Divorce is processed. They include things like:
- Making a list of all your marital assets
- List all debts held in both your name and your spouses’ name
- Block all joint bank accounts and credit card accounts and start your own.
- Ensure all marital debts such as mortgages are continued to be paid by both parties.
- Ensure you have copies of tax returns, credit card statements, mortgage payments, utility bills, insurance policies and superannuation accounts.
- Update your will immediately or if you don’t have one, have one done.
Splitting Financial Assets
If the both of you can agree on how to divide your financial assets and debts (this doesn’t include child support). Of course, if you can’t agree on the split, this will need to go to court to be decided. Most civil couples will sort out their finances during the first few weeks of separation so you can both live independently.
Agreeing on Care of Children
If you have children under the age of 18, you and your partner need to discuss your parenting arrangements for care, which parent the children with live wite and child support payments. The agreement you make will need to be formalised with a Child Support Agreement and a Parenting Plan.
Of course, these agreements can be changed and updated at any time providing both parties agree.
If both parties can’t or won’t agree, then family mediation is sought via a Family Dispute Resolution Service.
Steps for Applying for Divorce in Australia
You can apply for a divorce in Australia (even if you were married overseas) if either you or your spouse:
- Regard Australia as your home and intend to live in Australia indefinitely; or
- Are an Australian citizen by birth, descent or by grant of Australian citizenship; or
- You ordinarily, live in Australia and have done so for 12 months immediately before filing a divorce application.
If you have been married less than two years and want to apply for a divorce, you must either:
- Attend counselling with a family counsellor to discuss the possibility of reconciliation with your spouse; or
- Seek permission of the court to apply for a divorce without attending counselling.
Australia has a ‘no-fault’ divorce system. A court does not consider the reason/s the marriage ended. The only requirement is to show the marriage has broken down irretrievably, meaning there is no reasonable likelihood that you will get back together. In order to satisfy the court of this, you must have been separated for not less than 12 months and one day. It is possible to be separated but still live in the same house, but more evidence of separation is required. You can either apply for a divorce by yourself or jointly with your spouse.
According to research conducted by the Australian Institute of Family Studies, for both men and women, the divorce rate was higher among the two youngest age groups (under 30 years) than older age groups (30+ years). For women, the divorce rate was highest for the under-25 age group, whereas for men, it was highest for those aged 25–29 years.
Step 1: Fill Out an Application for Divorce Form
Once you have met the above obligations and separation, you can apply for a divorce via an Application for Divorce Form. Once this form is completed, it needs to be filed with the Family Court. The fees for filing this form are $900.00 (as per the Family Court website). The Court will stamp the application and give you a file number and a date and time for the court hearing. There is usually a two to four month waiting period for the hearing.
If you need to keep costs down, you can download forms directly from law firms that provide them.
Step 2: Serve Divorce Documents on Your Partner
You will need your solicitor to draw up Divorce Papers for your spouse to sign. You will need to ‘serve’ this documents to your spouse and have them sign them.
How much does a Divorce cost?
You are required to pay a fee to the court when you apply for a divorce, which at present is $900.00. Legal costs could be about $1500.
If there are children aged under 18 years, a court can grant a divorce only if it is satisfied that proper arrangements have been made for the children’s care.
The proportion of all divorces that involve children under 18 years of age has declined since the mid 1960s —from 65% in 1966 to 48% in 2012.
If you want to apply for a division of property or maintenance, you must file an application (separate from your application for divorce) within 12 months from the date your divorce becomes final. You will need the court’s permission to apply after the 12 months.
Can divorce applications be contested?
You can only oppose your spouse’s application where you say there has not been 12 months separation, the court does not have jurisdiction or proper arrangements have not been made for your children.
What do I do if I don’t know where my spouse is?
You are required to provide a copy of the divorce application to your spouse. If you are unable to locate your spouse, you should seek legal advice about steps that can be taken to dispense with that requirement.
I’m getting a divorce, is it safe to set a wedding date for my new marriage?
Plans to remarry should be held off until the divorce order is finalised. In most cases, this is one month and one day after the divorce hearing, however, you should not assume the divorce will be granted at the first court hearing.