The divorce process in Australia

By 22 October, 2018Divorce
what to do separation in marriage

What is a divorce ?

A divorce is the formal ending of a marriage whether married in Australia or overseas. It is not the division of the parties assets commonly called a property settlement nor is it decisions in relation to the children’s living arrangements if there are any infant children after separation. Finally it is not decisions in relation to the support of infant children commonly known as Child Support.

A divorce is an application made through the Court, currently the Federal Circuit Court by one party to the marriage or where agreement is reached by both parties then jointly (far less common) to end the marriage.

A divorce application can be made at any time where the parties have been separated for a period in excess of 12 months. There are rules which govern what constitutes 12 months of separation and those details are contained in a separate article.

The Process

A divorce application is broken down into the following fundamental steps:

  1. Preparation and filing of the Application with the Court;
  2. Arranging service of the filed Application on the other spouse (except in a joint Application this is not required);
  3. Proving that the Application has been served by the filing of further documents with the Court;
  4. Providing the Court with enough detail that any children under 18 are adequately cared for;
  5. The divorce hearing itself where an initial decree of divorce is made;
  6. A final divorce order being made one month and one day after the initial divorce hearing date and a Certificate of Divorce then being issued.

What We Do

Your Divorce assists with each of the steps above from the commencement of the Application process right through to the obtaining of the final Certificate of Divorce and providing it to you. There can be a number of issues along the way when filing an Application for Divorce where problems may need to be overcome. For example, what happens where you don’t know the location of your former spouse – can I still apply for a divorce ? The answer to this is yes you can but you will need to provide information as to your best efforts to locate your former spouse and whether any other person may bring the Divorce Application to their attention (such as a relative or an adult child of the relationship). We assist in preparing this material with you.

Another common problem is where the spouse refuses to acknowledge or co-operate in acknowledging the receipt of the Divorce Application. We are able to assist by arranging for a process server to attend and serve your spouse with the Application. That process server is then able to file material with the Court proving the service of the Application on your behalf so that the Application can proceed.

How long does it take

It is commonly asked what is the timing of the divorce process and why does it take so long. Firstly, as noted above a person must be separated for at least 12 months prior to filing their Application for Divorce. Once an Application is filed it is given a Hearing Date with the Federal Circuit Court which is usually 12 to 14 weeks after it is filed. The reason for the gap between the filing and Hearing date is in part to allow enough time to serve the Application on your spouse. There are rules that the proof of service of the Application must be shown to occur at least 28 days prior to the Hearing or it is likely that the Hearing will be adjourned to a later date. Once the Application is served paperwork needs to be prepared and filed with the Court showing that service has been undertaken.

Appearing at the Hearing

A common query is whether the Applicant will need to appear at the Court Hearing. Through the Your Divorce process we as your solicitors appear at the Hearing as needed in order to get the Divorce Order made. It is only in the rarest of cases where the divorce itself is contested by your spouse that a personal appearance may be required. There are very few grounds to contest a divorce as it is a legal process and can only be contested on technical grounds such as separation has not been for a period of 12 months or the fact that you were not lawfully married in the first instance.

When the initial Divorce Order is made at the Hearing the process under legislation is that the final divorce order is then made 1 month and 1 day after the Hearing. This process was originally designed to allow the parties to change their mind as to whether they wished their marriage to actually come to an end. This is extremely rare. Accordingly when the 1 month and 1 day has passed the Court will automatically prepare the final Divorce Certificate and Your Divorce will obtain a copy and provide it to you electronically. No original copy of the document is now produced by the Court as it is wholly an electronic system at this point.

Get started

To get started on your divorce application you simply need to click on the Get Started button on the Your Divorce website and provide the initial details sought in the simple questionnaire. There will be a need to upload your marriage certificate and a form of personal identification. Remember we are here to assist at every step of the way.