No one goes into a marriage assuming it will end in divorce. Yet it happens. Often. Whether you’ve been married for 15 months or 15 years or any other amount of time, it can be incredibly difficult to navigate the waters and determine how to end your marriage.
Do I need to pay for a lawyer? Will I need to go to court? Does my soon-to-be ex-husband need to be with me? What’s the first step?
Tom Cameron, a Solicitor at Coote Family Lawyers is here to guide you through how to get divorced in Australia.
“Going through a divorce is a significant life event that can be emotionally challenging and legally complex. If you’ve made the decision to proceed with divorce, it’s important to understand the necessary steps involved and source professional guidance to ensure the process runs smoothly.”
One thing to keep in mind when it comes to getting divorced in Australia is that this is entirely separate from the terms of a property settlement, or any parenting arrangements for your children. The divorce aspect can actually be a lot more straightforward than property settlement and a lot less stressful than determining the right parenting arrangements for your situation. But every situation is different.
First things first, you must be separated for 12 months
“To get divorced in Australia, you must satisfy the court that your relationship has broken down irretrievably and there is no prospect of reconciliation between you and your spouse. This is evidenced by 12 months of separation.
Generally speaking, this can be shown by having lived separately for a period of 12 months. There are, however, certain circumstances where this isn’t possible, and you and your spouse may separate but continue living under one roof. In these circumstances, you will need to file evidence with the Court, by way of affidavit detailing the circumstances of the separation under one roof.”
How to file for divorce
The Application for Divorce is filed online through the Commonwealth Courts Portal and can be made solely or jointly with your spouse. Filing for divorce solely means that you will need to ‘serve’ your husband the papers.
“If you make a sole Application for Divorce, you’ll be required to serve the application and supporting documents on your spouse personally – via a process server or other means – and attend the hearing. If you don’t have a child or children of the marriage that are under the age of 18 years, attendance at the hearing isn’t required.
The court will generally make a divorce order at the hearing provided the court is satisfied as to jurisdiction, the ground for divorce is proved (i.e. the 12 months of separation), and that proper arrangements have been made for the care, welfare and development of any child or children of the marriage.
If the Divorce Order is granted at the hearing, it will be effective and available for download from the Commonwealth Courts Portal one month and one day after the hearing. Once the divorce takes effect, you and your spouse are legally divorced.”
Joint filing
Your best option when it comes to getting a divorce in Australia is to file a joint application. This will be your most affordable option and it is also quite straightforward. However, it does require you and your spouse to cooperate which isn’t always easy.
If you are filing your application without the assistance of legal representation, you will need to start an account in the Commonwealth Courts Portal where you will log in and be able to access everything you need.
“The benefit of a joint application is that neither party is required to attend the hearing, and the documents do not need to be served. You may also elect to share the court filing fee.”
In this instance, you don’t have to go to court and everything is done behind the scenes. You will need to file the paperwork together and pay the fee but there is no court hearing which takes away a lot of stress.
Some of the information that you need to complete in the Application includes:
- The details of each party and their legal representatives (if represented);
- The parties’ date of marriage and separation including any periods in which the parties were separated under the one roof;
- Information on any previous or current Court cases or Orders; and
- The details for any children under the age of 18, including their spend time arrangements with the parties, any financial support which is being provided by one party to the other and information regarding their health and education.
How long will it take?
The process, from the time the application is filed until the Divorce Order takes effect, usually takes around two to four months.
Do I need a lawyer?
If you are filing a sole Application for Divorce, a lawyer is probably your best bet. You will also need to choose a family law firm that isn’t representing your spouse as this is a conflict of interest.
To file a joint Application for Divorce, you don’t need a lawyer. It is entirely possible to do it yourself online. You will need to visit a Justice of the Peace to sign the documentation and pay the filing fee which is currently $1,060.
However, you will most likely need a lawyer, or at least obtain legal advice, for the other aspects of a marriage breakdown, including property settlement and parenting plans. From experience, I would recommend contacting a family lawyer, even if it’s just to get their advice and ask them to walk you through the process.
As Tom tells us:
“Divorce can be an emotionally challenging process so understanding the legal framework and sourcing professional advice from a qualified professional can be an effective way to ease the transition.
By approaching the divorce process with patience, open communication with your ex-spouse, and appropriate legal advice, you’ll be well prepared for the next chapter of your life.”
What to read next
- How to Overcome the Challenges of Co-Parenting with an Uncooperative Ex
- How to Leave an Unhappy Marriage
- Common Co-Parenting Schedules and How to Pick the Best Option for your Family
Tom Cameron, Solicitor at Coote Family Lawyers – Tom is passionate and driven with a strong interest in parenting and property matters. He has worked in family law since 2017 and joined Coote Family Lawyers as a Law Clerk in November 2020.
