Family Law – Divorce
What is a divorce?
A Divorce Order in Australia does not change your name, deal with your property or set up the care arrangements for children. It is simply, but importantly, the end to the legal connection that a marriage creates.
In Australia, we have a no fault divorce system. This means that the Court will not ask why your relationship ended. They are only interested in when it ended.
When can I apply for a divorce?
Once you have been separated for more than 12 months, you, your spouse, or you and your spouse together, can apply for a divorce.
How do I apply for a divorce?
You will need a few things to get started:
- A clean copy of your marriage certificate
- If neither yourself nor your spouse were born in Australia, you will need a copy of either a Citizenship Certificate or a Green Medicare Card, to provide the appropriate connection to Australia
- If you are planning on applying for a fee reduction you will need a copy of your health care card or similar (both sides)
However, if you have a more complicated situation, it might be worth getting legal advice or assistance with your divorce application. We are used to handling more difficult divorce applications, as well as simple applications that are sometimes bundled in with other work we doing for our clients.
It usually takes about 4 or 5 months from when an application is filed until the Divorce Order is available. So, please make sure you leave yourself plenty of time if you are planning on marrying again soon.
What does a Divorce do?
- Your spouse is no longer your husband or your wife
- Your legal connection with your former spouse is now severed
- You then only have 12 months to apply to the Court for any Orders you may need for property settlement (if you haven’t already done this)
- Any provisions in your will to “my wife” or “my husband” are now invalid. Your will must be urgently reviewed
- You become free to marry again
We find that some people need to see this application signed as soon as their 12 months is up, and others will come in many years down the track to “tidy things up”. As with most things, an early application is usually simpler. The other party will be easier to locate making service issues simpler.
I don’t know where my spouse is. Can I still get divorced ?
Your application is likely to take a bit longer, but it shouldn’t prevent the divorce being granted.
My ex says they won’t give me a divorce. What do I do?
While it is usually simplest (overall) to do a joint application, that isn’t because the application is easier or that the Court is more likely to grant the application. It is only because you have less running around to do for a joint application.
If you make a sole application for a divorce, you have to serve a copy of the application on your spouse, file proof of that service with the Court, and attend the hearing if you have children under 18 years. You don’t have to do those things for a joint application.