Our Guide to Understanding the Divorce Process in Australia

The end of a marriage can be a traumatic time for all involved. There’s a lot to consider when going through the divorce process in Australia, from financial matters to property assets and care for your children. While no two divorces are the same, all will follow a similar process in Australia. Here’s everything you need to understand the divorce process.


What to Do Once You Separate

The divorce process in Australia often begins once you separate from your spouse. There are several steps you should take as soon as you separate, and before you apply for divorce.

It is important to tell friends and family of your separation as soon as possible. This will assist with time frames and eligibility to apply for divorce. You might also want to update your relationship details with government agencies such as Medicare and Centrelink, and other institutions such as your super fund and insurance companies. This might also be a good time to either update your Will, or if you do not have one, write one immediately.

Next, you must sort out your financial affairs. You might want to close any joint bank accounts and credit cards, just in case your ex-spouse decides to spend or withdraw large sums of money without your approval. You should also make sure that your individual salary and income goes into an account that only you can access. When it comes to your assets and debts, it is best to make a list and divide them as best as possible between yourself and your ex-spouse with the help of a lawyer. However, if you are unable to resolve any issues regarding the division of your assets, the court may need to intervene. As for paying bills, the mortgage, and other repayments, both you and your ex-spouse should come to an agreement as to who pays what. Any ongoing financial obligations or the splitting of assets prior to lodging your divorce should be documented in a Separation Agreement. If you have not made any property settlement or spousal maintenance agreements prior to the divorce, then you must apply to the court within 12 months of your divorce becoming final.

Finally, you should seek legal advice from a family lawyer, preferably before separating. An experienced family lawyer can provide you with personalised advice that ensures your divorce process runs as smoothly as possible.


Eligibility For Divorce in Australia

Section 48 of the Family Law Act 1975 states that when a couple separates, both parties must live separately and apart for a continuous period of no less than 12 months before filing for divorce. It must also be satisfied that the marriage has broken down irretrievably and that there is no reasonable likelihood of cohabitation being resumed. Section 50 of the Act states that if a couple separates, then reconciles for a period of three months or less before separating again, the two periods of separation may be aggregated into one single period. If the reconciliation period occurs for more than three months, then separation commences from the most recent date.

As part of the divorce process in Australia, Section 39(3) of the Act states that the separated couple must satisfy the following requirements. An applicant for divorce must be:

  • An Australian citizen;
  • Domiciled in Australia; or
  • Ordinarily resident in Australia and has been so resident for 1 year immediately preceding that date.

If you have been married for less than two years, you must attend counselling to discuss the possibility of reconciliation, or, you must seek permission of the Court to apply for divorce.


Dealing With Children Under 18

As soon as you separate, you and your ex-spouse should discuss and come to an agreement as to how to continue raising your children. This includes where they will live, how they will be financially supported, how much of a relationship they will have with both parents and other important people in their lives, and their education and health.

You can formalise this agreement with a Parenting Plan (covering how the children will be cared for) and a Child Support Agreement (how the costs of raising your child will be met). If both parents agree, there is no need to go to the court to formalise the Parenting Plan. A Child Support Agreement is a legally binding agreement set out by the Department of Human Services (Child Support) (DHS).


Applying for Divorce

The divorce process in Australia allows a spouse to either apply for divorce on their own (a sole application), or together as a couple (a joint application) through the Federal Circuit Court.

With a sole application, one party must file their application with an accompanying affidavit that must be ‘served’ on the respondent (the other party). The ‘server’ can be a family member, friend or professional process server. Documents must be served at least 28 days before the court hearing if the spouse lives in Australia. As for a joint application, both parties must sign the affidavit when applying for divorce.

Your application must include the application form plus two copies, a photocopy of your marriage certificate and supporting documents such as an affidavit (multiple copies). If your application involves no children under 18, you do not not have to attend court. However, if children under 18 are involved, you must attend court to file your application. If you are making a joint application, there is also no need to attend court. A court filing fee is payable to the Federal Circuit Court. You can also complete your application for divorce online.

Once you make your application for divorce, it can take several months for the application to be finalised. If the Court is satisfied and proper arrangements have been organised for children under 18, a divorce order will be granted. This order usually becomes final one month and one day after it is made.

There may be instances where one spouse may oppose the divorce application. However, there is very little that spouse can do when refusing to sign any documentation related to the divorce. The Court can still grant a divorce, regardless of whether or not both spouses sign the paperwork. There is only one possible reason for delaying the divorce process in Australia, and that is if there is inadequate proof that the couple has been separated for 12 months.


Speak To Our Lawyers About the Divorce Process in Australia

For more detailed information regarding the divorce process in Australia, and the necessary steps you and your spouse need to take for a smooth transition after marriage, please reach out to our team of family lawyers. At Emerson Family Law, we specialise in all matters pertaining to divorce and separation, children and financial matters. Please get in touch with our team to see how we can assist.