Divorce Demystified: A Comprehensive Guide to Divorce in the Australian Context

Co-authored by Isabel Strahan

KEY TAKE-OUTS:

• There are numerous eligibility requirements that must be satisfied in order to be divorced in Australia.
• There are two types of divorce applications: sole and joint applications.
• Whether your attendance is required at the Divorce hearing depends on the circumstances.
• You may be required to submit further documents if you still live under the same roof as your ex-partner or have a child/children under the age of 18.

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When two parties to a marriage separate, it can be an emotional and challenging time. The emotions that are associated with the separation of a marriage can be compounded with confusion in relation to the legal processes and procedures that must follow.

This article intends to breakdown the eligibility requirements, what you will need to consider before filing, what a divorce hearing may look like and the finalisation of a divorce.

Eligibility Requirements

In order to be considered eligible for divorce in Australia, the following must be proven:

1. The couple was legally married,
2. The relationship has irretrievably broken down, and
3. The couple has been separated for more than 12 months.

In addition to the above requirements, you or your partner must satisfy one of the below requirements:

1. Be born in Australia,
2. Have a citizenship certificate, or
3. Have the intention of continuing to live in Australia for at least 12 months.

Types of Applications

When applying for a divorce there is a choice of two different applications: sole or joint.

A sole application is individually applied for and then served onto the other party. This application is beneficial in situations where the other side does not agree to a joint application or where one party has a concession that can be used to minimise filing fees.

However, it must be noted that if the other side is not legally represented, your solicitor may need to instruct a process server to serve the documents to your ex-partner which will incur an additional fee.

A joint application is signed by both parties and therefore, there is no process server fee. However, both parties must freely consent to file a joint application for divorce.

Things to Consider Before Filing

1. Have you been married for less than two years?

In accordance with Section 44 of the Family Law Act 1975, if you have been married to your partner for less than two years it is classified as a ‘short marriage’. This will alternate the process of divorce. A counselling certificate is needed to prove that there is no chance of reconciliation between you and your ex-partner. This will need to be filed with your application as a supporting document.

2. Have you been living under the same roof for the last 12 months but have been separated?

As abovementioned, in order to be eligible for divorce the parties to the marriage must be separated for over 12 months. The Court recognises that in certain financial or family situations, it may be difficult to move out of the matrimonial home. However, you must prove to the Court that there is no chance of reconciliation therefore, further evidence is needed.

An affidavit supporting your divorce application would be required to explain how you maintained separation whilst still living in the same house.

The affidavit could include details of the following:

• A change in sleeping arrangements,
• A reduction in shared activities, for example, family outings,
• A decline in performing household duties for each other,
• The division of finances, or
• Any other relevant material for example, if you have notified your family and friends of the separation.

It is important to note the operation of Section 50 of the Family Law Act 1975 when discussing separation under the same roof. This provision notes that the time of separation does not need to start again if your partner moves back into the home for less than a continuous period of 3 months.

In summation, if during the period of your 12-month separation, you choose to reconcile, however after 2 months of living together you agree to file for divorce, you will not need to start the 12-month separation period again.

3. Is there a child/children of the relationship that are under the age of 18?

The divorce order will not take effect if the court is not satisfied that there are no children of the marriage that are under 18.

If there are children under the age of 18, the Court must be satisfied that proper arrangements have been made for the children. This may include the formalisation of a parenting plan or Consent Orders.

Attendance in Court Hearings

Divorce hearings are held in the Federal Circuit and Family Court of Australia.

Whether or not your attendance is required is dependent on the circumstances of the case. It is normal practice that if your divorce application requires additional evidence for example, if you have filed a sole application and there is a child under the age of 18, you will be required to attend the hearing.

However, attendance is not required if you have submitted a joint application and indicated that neither of you wishes to be present at the hearing.

Attendance for Divorce Hearings are done remotely by either telephone or video conference if required.

Finalising a Divorce

Once your application has been filed you will receive a listing date when your matter will be heard. Exactly one month and one day after this date, the Court will make your Divorce Order. This Order will be made available to you or to your legal representative.

Next Steps

A Divorce Order does not put an end to your financial relationship.

We advise that a property settlement is conducted before filing for a divorce however, if your divorce has been finalised without a property settlement, this must be completed in order to completely sever the financial relationship.

The Family Law team at Coutts Lawyers and Conveyancers is dedicated to ease the process of divorce. We acknowledge that a separation can be extremely emotional and that the legal procedures are confusing.

Our aim is to provide you with legal advice that does not contain legal jargon in hopes of supporting you through this difficult time. If you wish to book an initial consultation and speak with one of our family lawyers please call 1300 268 887 or send an email to info@couttslgeal.com.au.

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