Whether you’ve already separated from your spouse or you’re considering asking them for a divorce, one of the questions on your mind is most likely going to be, “how long does a divorce take?”.
In Australia, obtaining a divorce requires a number of different steps, with the process taking on average around 18 months.
To guide you, we’ve put together some information about what is involved in the divorce process, and we also answer some of the other common divorce and separation questions that as Family Lawyers, we’re asked.
What is the divorce process in Australia?
The Australian divorce system is a no-fault divorce system. What this means is that it does not need to be proven that either party to the marriage is “at-fault” for the breakdown of the marriage. Rather you just need to be able to prove that you and your former partner have been separated for at least 12 months before you can apply for a divorce.
The “no-fault” divorce system has been in place since 1975, when the Family Law Act was passed.
The process of obtaining a divorce does differ based on whether it is a sole application, or you are lodging with your spouse.
If you’re applying for a divorce together
When both spouses can cooperate and apply for a divorce together, they can lodge their application for divorce with the Federal Circuit and Family Court of Australia. When spouses file for divorce together, they are known as joint applicants.
If you’re applying for divorce alone
You can apply for divorce without the consent of your spouse, and this is known as a sole application. If you do apply for divorce by yourself, you will be known as the applicant, and you must ensure that the application for the divorce is served to your former spouse. The application must be personally handed to your former spouse, but this does not need to be done by you – it could be performed by a trusted friend, family member or by a professional process server.
A sole application for divorce will require Court attendance if there are children under the age of 18.
When you apply for divorce alone, you are known as the applicant, while your former partner is known as the respondent.
Sole applications can be made for a variety of reasons, including if your former partner does not want a divorce, if you’re afraid to ask for a divorce or even if you’re unable to locate your former spouse.
Do I need a lawyer to get divorced?
No, you don’t need a lawyer in order to file for divorce.
It’s possible to file your divorce application online or by using documents supplied to you by the Courts. You will need to ensure that you have a copy of your marriage certificate, as well as the funds to pay for the application.
While you don’t need to enlist the help of a lawyer when it comes to filing for divorce, we highly recommend that you do speak to one. Not only can they help you manage the whole process, but a great divorce lawyer can also ensure you understand your rights, responsibilities, and obligations, as well as provide you information about the implications of divorce for your situation.
You will need to provide some documentation – including a copy of your marriage certificate – to a divorce lawyer, as well as answer some questions to ensure they understand the details of your unique circumstances.
If your marriage certificate is not in English, it must be translated by an approved translator, and an affidavit of translation must also be provided.
If you are unable to find your marriage certificate, then it must be replaced before you can complete your application. A replacement can be obtained from Births, Deaths, and Marriages if you were married in Australia. If you were married overseas you may need to contact a relevant authority in the country where your marriage occurred.
If you are unable to provide a marriage certificate, you must be able to prove that all necessary steps were taken to try to obtain a marriage certificate.
When can I apply for divorce – are there any time limits I need to be aware of?
Before you are able to apply for a divorce in Australia, you must be able to prove that you have been separated for at least one year and one day. This means that is you separated on January 1st, 2022, for example, then you must wait until January 2nd, 2023, before you can file for divorce.
If you’re making a sole application for divorce, then you must serve the divorce documents to your spouse at least 28 days before the court hearing for your divorce if your spouse is in Australia. If your spouse is overseas, then the documents must be served at least 42 days before the hearing. This is to allow time for them to respond and sign any required paperwork.
Another important time limit to be aware of is if you have been married for less than 2 years. If you have been married for under 2 years, then you will also be required to file a counselling certificate. The 2-year period commences from the date of marriage to the date of your divorce application. You must still have been separated for at least 12 months and one day before making the divorce application too.
What does it mean to be separated?
Separation is commonly misunderstood, particularly when one party does not want a divorce to occur. For a couple to be separated, and for the separation period to commence, one party (or both parties) to the relationship need to decide that the relationship is over and there is no chance of reconciliation. In addition to this decision, this must be communicated to the other party. This communication may happen in a variety of ways including in person, email, and phone call.
Whether you’re the one instigating the separation, or you’ve been told about the separation by your spouse, it’s important to ensure you keep a record of this date, as you need to be able to prove the time period of the separation.
The decision to separate can be made by one person in the relationship, they do not require the other person to agree for the separation period to commence.
To be able to apply for divorce you must be separated for at least 12 months and one day, however, the separation does not need to be continuous. It’s not uncommon for coupes to reconcile and then separate again. As long as the reconciliation period is brief and under 3 months, then you can add the separation periods together to achieve the 12-month separation period.
Separation looks different for every relationship. Some people signify their separation by moving into separate residences and ensuring they have no shared information or accounts, whereas others might still live in the same residence. This might because they share children and it’s easier to parent them whilst living in the same home or because it’s not financially viable for either party to move out yet.
If you do live together during your separation, you will be required to confirm that your separation is legitimate via an affidavit. Some of the ways you can prove this separation is by updating your banking accounts, so you don’t have any shared accounts or if you’re on the same Medicare card, applying for your own separate Medicare Cards.
So, separation and divorce are different?
Yes.
A separation does not require any legal processes to occur whereas a divorce is the legal process of ending a marriage. People may separate and never apply for divorce. This could be for a variety of reasons, including that divorce legally separates you and your spouse from each other financially, and for some circumstances, this impact is too severe, or they may not want to bother with the process, for example. Staying married may mean you have legal obligations, which is why it’s important to speak to a divorce and separation lawyer.
While a divorce isn’t legally required when a marriage ends, if you want to remarry in the future, you must get a divorce as it is a criminal offence to marry another person while still legally married.
Is there any reason my divorce might be delayed?
Your divorce proceeding may be delayed for a variety of reasons – though most of these can be avoided if you work with a divorce lawyer or ensure that your application is thorough and correct. The most common reasons a divorce may be delayed include:
- If you need to replace your marriage certificate or you’re unable to replace it, you need to have made the appropriate attempts to replace it.
- If you’ve been married for less than two years you are required to either attend counselling to resolve your issues. In instances of domestic or family violence, this will not be required.
- If you have been unable to locate your spouse to serve them with the divorce papers. If you can’t locate them then you need to apply to the Court for an exemption for this requirement.
- If your application or part of your application for divorce is not satisfactory in the eyes of the Court – for instance, if the Court believes the arrangements pertaining to your children are not appropriate for the circumstances.
Does a divorce cost money?
Yes, an application for divorce in 2022 costs $990. There is also a reduced fee option that can be applied for if you can demonstrate financial hardship, which reduces the fee to $330.
If you’re filing for divorce together, then you and your spouse can share the fees, however, if you’re filing alone, your spouse does not have any obligation to pay this fee.
How do I know when I am divorced?
After your application and hearing has been completed, your divorce will be granted, with a decree that it is final issued one month and one day after the hearing.
You can get a copy of your divorce order from your solicitor or via the Commonwealth Courts Portal on the following working day after the order has been made final.
Should I get a lawyer for my divorce?
Working with an experienced divorce lawyer to navigate your divorce can help to make a complex situation a lot easier. Whilst you can complete the application and divorce process alone, a lawyer can advise you of your legal standing and ensure that any agreements that you make with your spouse are a good option for you and your situation, and that your legal rights and obligations are being upheld.