Family Law – Divorce

What is a divorce?

A divorce is the legal paperwork to confirm the end of a marriage. There used to be some fancier names for that paperwork (decree nisi and decree absolute), but it is now simply called a Divorce Order.

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?

To be able to apply for a divorce, you must be separated for 12 months or more. If you have been married less than 2 years, then you will need to have completed marriage counselling, before you can lodge your application. The 12 moths of separation is the only ground for divorce in Australia.

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 can apply for a divorce using the interactive application form on the Court website. It can be a bit fiddly, and you’ll become used to uploading things through their site if you manage it yourself, but it’s not too difficult if things are fairly straightforward for you.

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?

Getting divorced has some specific legal implications:

  • 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.

Common Questions

I don’t know where my spouse is. Can I still get divorced ?

You can still go ahead with an application for divorce. You will need to file some extra paperwork, asking the Court to give you directions about how they want you to handle the issue. The Court will need to know more about when you last had contact details for your spouse, whether you know anyone else who might know where they are, and if there are any risks for you if they are located. The Court can potentially decide to dispense with service (just rely on your paperwork), or they might order that you provide a copy of the paperwork to your former spouse in an unusual way (messenger, or what’s app or similar) or perhaps by sending it to someone else who is likely to know how to inform your spouse about the divorce application.

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?

Just apply on your own. You don’t need the permission or agreement of your former spouse to begin a divorce application.

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.

My marriage certificate is from overseas. Can I use it?

You can (and should) rely on an overseas marriage certificate if that is where you were married. If your marriage certificate is not in English, then you will need to arrange for a translation to be prepared and lodge that with the Court as well.

We don’t have our property settlement and parenting arrangements legally sorted. Do we have to wait to do that first, before we do our divorce?

No, you don’t need to have those things legally sorted out before you apply for a divorce. You just need to have been separated for 12 months.