How Do I Get a Divorce?
The Australian divorce process involves a few steps. Some people do it themselves without using a lawyer. However, any mistakes made in the process will result in delays. A specialist lawyer will be experienced in handling the exercise and will be able to advise whether court attendance will be required.
1. Check your Eligibility
Are you Legally Married?
To be eligible for a divorce you need to prove that you are legally married. This will firstly involve showing that either you or your spouse are an Australian citizen or have been lawfully living in Australia for at least 12 months. You will need a birth certificate, passport or visa document to prove this.
Secondly, you will need to have a marriage certificate. If you do not have one you can obtain one from the state Births, Deaths and Marriages Registry. If you were married overseas you will need to have your foreign marriage certificate translated into English by an approved translating service.
Has your Marriage broken down?
A divorce requires an ‘irretrievable breakdown’ of marriage. This means that there is no reasonable possibility that you will get back together with your spouse. To demonstrate this, you and your spouse must have been separated for at least 12 months and 1 day.
You can claim this separation even if you have been living under the same address. However, if this is disputed by the other party you will have to provide additional evidence at a court hearing.
Furthermore, if you have been married for less than two years you will need to attend counselling with your spouse prior to considering a divorce application.
2. Are you a Sole or Joint Applicant?
Before you make your application, you need to decide whether to make a Sole or Joint Application.
A Sole application requires only you to sign the application. You will have to serve the application onto the respondent. (More information on serving below) You will need to attend a hearing if your marriage has children under the age of 18.
A Joint application requires one of you to fill the application and the other to sign it. You do not need to serve documents to the other party, and won’t be required to attend a hearing.
3. Make your Application
You can file an application for divorce online at the Commonwealth Courts Portal. Register for an account on the portal and that will be your main destination for uploading documents and receiving information about the process.
The application itself will ask for a number of details including you and your spouses’ personal details, the details of your marriage, and other details relating to parenting or criminal matters.
You will also need to fill out an Application for Divorce and an Affidavit for eFiling Application (Divorce). These documents in particular need to be signed in the presence of an authorised witness. (such as a Justice of the Peace or a Lawyer) You will also have to file any other documents online (eg your marriage certificate).
There is an application fee of $940, however, you may be eligible for a reduced rate of $310 if you own a concession card, receive welfare or can prove financial hardship.
If you are a joint applicant, you have now completed the divorce process. You will be able to download your divorce order from the Commonwealth Courts Portal one month and a day after your divorce is granted.
If you are a sole applicant and/or have children of the marriage under the age of 18 you will need to consider steps 4 and 5.
4. Serving the Documents (If you are the Sole Applicant)
Once you have uploaded the affidavit you will be able to download a sealed copy of the affidavit along with a cover sheet. This copy needs to be served to your ex-spouse at least 28 days before the hearing.
Documents can be served by post or by hand. If you are serving by post, you will need to send the affidavit along with a set of documents found in the Divorce Service Kit to your ex-spouse’s last known address. If your ex-spouse does not sign and respond to this then you will have to serve them by hand.
The process is identical to serving by post however you cannot serve the documents to your ex-spouse yourself. You will need a friend or family member over the age of 18 to serve the documents on your behalf. You may also serve your spouse’s lawyer.
If you are unable to serve the documents, you will have to apply for substituted or dispensation service. In both instances, you will be required to go to a divorce hearing.
5. Divorce Hearing (If you are the Sole Applicant and have children under the age of 18)
You will be required to attend a court hearing if you have children from the marriage under the age of 18 or if you have requested one. The hearing date will be available from when you filed your application.
At the hearing, the court will determine whether you have followed the correct process for a divorce and will grant a divorce order if they are satisfied that you have.
If you have children under the age of 18 the court needs to be satisfied that you have arranged for your children to be cared for before a divorce order will be granted.
6. What’s Next?
You will have 12 months from the date of your Final Divorce Order to settle personal arrangements with your ex-spouse. This includes organising custody, settling finances and property rights as well as dividing up assets. The settlement process can be complicated and difficult to manage – it would be advisable to speak to a specialist lawyer on the matter to help you go through the process. If you need assistance with the divorce process, or with a property settlement you can contact us via the contact page or the form.
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