The idea of divorce is well known, as is the established principle of no-fault divorce in Australian law. However, many people are unsure about what is actually involved and the steps required to legally end a marriage.
In this article, we explain the divorce process in simple terms, including the requirements for applying for divorce, what happens at a divorce hearing, and what issues are dealt with separately from the divorce process.
In Australia, the Court does not consider why a marriage ended. The only ground for divorce is that the marriage has broken down irretrievably. This means there is no reasonable likelihood that the parties will reconcile and resume married life.
Divorce applications are dealt with by the Federal Circuit and Family Court of Australia (FCFCOA).
Separation Before Applying for Divorce
In Australia, couples must generally have been separated for at least 12 months before applying for divorce.
Separation occurs when at least one person communicates that the relationship has ended and there is an intention to end the marriage. In some circumstances, couples may continue living in the same home after separation.
If the parties have separated but remained living under the same roof for any period, or are currently living under the one roof, they may need to provide additional information to the Court about their circumstances.
The Court may consider factors such as:
- Changes to the nature of the relationship.
- Whether the parties have separated their finances.
- Changes to household responsibilities.
- Whether friends and family are aware of the separation.
It is important to seek legal advice if you are applying for divorce while living under the same roof, as additional evidence may be required.
For marriages of less than two years, the parties must also attend counselling with a family counsellor or nominated counsellor to discuss the possibility of reconciliation. If counselling has not occurred, permission from the Court may be required before applying for divorce.
Applying for a Divorce
To apply for a divorce, the parties must first satisfy the Court that there is a valid marriage.
A copy of the marriage certificate is required as part of the application. If the marriage certificate is unavailable, or if it is not in English, the Court may require alternative evidence or a translated copy before granting the divorce.
A person can apply for divorce in Australia if one of the following applies:
- Either party considers Australia their home and intends to live in Australia indefinitely.
- Either party is an Australian citizen by birth, descent, or grant of citizenship.
- Either party ordinarily lives in Australia and has done so for the 12 months immediately before filing the application.
The applicant must also satisfy the Court that:
- The parties have been separated for at least 12 months.
- There is no reasonable likelihood of reconciliation.
A divorce application can be made jointly by both parties or by one person individually.
Divorce and De Facto Relationships
Divorce only applies to couples who are legally married. People in de facto relationships do not need to apply for divorce when their relationship ends.
A de facto relationship is generally recognised where two people, whether of the same or opposite sex, have lived together as a couple on a genuine domestic basis.
Although de facto couples do not require a divorce, they may still need advice about issues such as family law disputes, property settlements, financial arrangements, and parenting matters.
Arrangements for Children After Divorce
The Court will not grant a divorce unless it is satisfied that appropriate arrangements are in place for any children under 18 years of age.
This does not mean that parents must have formal parenting orders before applying for divorce. Instead, the Court must be satisfied that the children are being properly cared for and supported.
The divorce process itself does not determine parenting arrangements. If parents cannot agree about future care arrangements, they may need to participate in dispute resolution or seek parenting orders through the Court.
The Divorce Hearing
Divorce hearings are generally brief and are usually conducted by a Registrar of the Federal Circuit and Family Court of Australia.
In some circumstances, the parties do not need to attend Court.
The applicant must attend the divorce hearing if:
- They made a sole application for divorce.
- They have children under 18 years of age.
If the parties made a joint application and do not have children under 18, attendance at the hearing is generally not required.
A party can only oppose a divorce application in limited circumstances, such as where:
- The parties have not been separated for the required 12 months.
- The Court does not have jurisdiction to deal with the application.
During the hearing, the Registrar may ask questions about the divorce application, whether the application has been properly served on the other party (if required), and the arrangements in place for any children.
If the Registrar is satisfied that the requirements for divorce have been met, the Court will grant the divorce.
When Does a Divorce Become Final?
A divorce order does not become final immediately. Generally, it becomes final one month and one day after the divorce hearing.
Once the divorce order becomes final, the Court will issue a Divorce Order confirming that the marriage has legally ended.
If you are planning to remarry, you should not do so until the divorce order has become final. It is also important not to assume that a divorce will automatically be granted at the first hearing, as the Court may require further information.
What Happens After Divorce?
It is important to understand that a divorce does not decide issues relating to property, financial arrangements, or parenting matters.
If parties need to resolve these issues, they can:
- Reach an agreement between themselves.
- Formalise an agreement through Consent Orders.
- Apply to the Court for orders if an agreement cannot be reached.
It is generally recommended that you obtain legal advice before finalising arrangements after separation, particularly where there are significant assets, businesses, superannuation interests, or disputes about children.
How Our Divorce Lawyers Can Help
While it is possible to apply for divorce without legal representation, many people choose to obtain advice from an experienced family lawyer to ensure the process is completed correctly and they understand their legal options.
At Somerville Laundry Lomax, our family lawyers assist clients throughout the Northern Rivers with separation, divorce applications, parenting matters, and property settlements.
Contact Somerville Laundry Lomax
If you need advice about divorce or separation, contact our experienced legal team for a confidential discussion about your circumstances.
Call us on (02) 6621 2481 or email [email protected].
Summary
The divorce process in Australia involves several steps, including meeting separation requirements, making an application, attending a hearing where required, and obtaining a final Divorce Order.
Although you can complete the process without a lawyer, obtaining advice from an experienced divorce lawyer can help you understand your rights and ensure important legal issues are addressed.