Divorce is a stressful and emotional experience for any couple to have to face. But the good news is at least the administrative and legal processes involved can be relatively straightforward … if handled in the right way and with sound advice.
In Australia once you have taken the first steps to a divorce, there is a pretty basic structure to follow. This takes you from initiating your divorce with the court, through to it ultimately being granted.
So many couples filing for divorce have no idea what to expect from the process. This uncertainty can add an extra level of pressure at an already turbulent time. So for those investigating divorce for the first time, we have developed the following, simple guide.
Here, we take the emotion out of it. We explain objectively and practically what to expect from the various stages of getting a divorce in Victoria that must be navigated.
Requirements for getting a divorce
Ultimately, the power to grant a couple a divorce sits in the hands of the courts. And while the court doesn’t look to place blame on either party, Australian law has one overarching stipulation – a marriage must be demonstrated to have broken down irretrievably.
As part of this, Australian couples applying for a divorce must provide evidence they have been separated for a minimum, continuous period of 12 months.
A separation can easily be shown where the divorcing parties have been living at different addresses for a period. However, keep in mind that in some instances, physical separation could be because of work situations or visa issues.
Separation can also be demonstrated by couples who have been leading separate lives while remaining in the same home. If this is the case, the court simply requires an independent third party to offer confirmation of the separation. This can be an adult family member, friend or colleague.
If the divorcing couple have children under the age of 18, the court will also need to consider whether appropriate arrangements are in place for them.
If you were married overseas, you can apply for a divorce in Australia if either you or your spouse:
- regard Australia as your home
- intend to live indefinitely in Australia
- are an Australian citizen by birth, descent, or grant of an Australia citizenship, or
- are ordinarily a resident of Australia, including during the 12 months immediately before filing for divorce.
How to get divorce papers and prepare your divorce application
Once a couple is confident all the requirements outlined above have been met, preparing and submitting a divorce application to the court is the next order of business.
This can be completed together by the couple as a combined effort in the form of a Joint Application, or by one party acting as a Sole Application. In the latter instance, you will need to ensure your spouse is officially ‘served’ with the appropriate paperwork. This is to ensure they are legally aware:
- of your intentions for divorce
- that court proceedings are underway
- of their own legal obligations moving forward.
If your ex-partner no longer lives in Australia, or if you don’t have an address for them, your family lawyer can advise you on how to serve them via email, or even social media. Where you can demonstrate all reasonable steps have been taken to track them down, your lawyer can support you to apply for a special order. This will dispense with the service requirement altogether.
If an Application for Divorce is contested by the recipient, a court hearing will be arranged to determine how best to move forward. A good family lawyer will be able to guide you through this process. They will provide advice and resources to make this aspect of divorce as stress-free, fair and effective as possible.
As is typical with most other legal applications made to the court, it is a case of filling out the associated paperwork, in this case an Application for Divorce form.
Couples and individuals are strongly advised to have their applications completed by a qualified family lawyer. This will help properly navigate the many complex rules around the service of divorce applications. If you get this wrong the court could reject your application. This will add time and expense to the process, and could have implications on the time limit within which you must finalise your property settlement after you are divorced.
Once completed, the application needs to be signed before an Australian lawyer, Notary Public, or Justice of the Peace (JP).
Lodging your divorce application with the court
Once you have completed your Application for Divorce with guidance from your legal practitioner, you must sign, scan and submit all the papers online. You can do this at the Commonwealth Court Portal, by following its step-by-step instructions for e-filing. Again, your lawyer will remain on-hand to help walk you through this process.
Typically at this stage an Application for Divorce filing fee of $930 is payable to the court. However, you may be deemed eligible to pay a reduced filing fee of $310, if you can demonstrate you are:
● aged 18 years or below;
● considered to be living in financial hardship;
● the holder of a Department of Human Services Health Care Card or Pensioner Concession Card, or Department of Veterans’ Affairs Pensioner Concession Card;
● receiving youth allowance, Austudy or ABSTUDY payments;
● receiving Legal Aid; or
● a prison inmate, or detained in a public institution
Remember, for couples filing a Joint Application, both must meet the criteria to take advantage of the reduced fee.
Those responding to an Application for Divorce initiated by a Sole Applicant typically aren’t required to pay any filing fees, although they will need to pay legal fees if they choose to engage a lawyer to assist them with their response.
Once the Application for Divorce is filed, you will receive a hearing date that will usually be three-to-four months after the filing date.
The divorce hearing
Let’s assume your Application for Divorce has been successfully lodged with the court, checked and signed off. So what’s next? Although wait times can vary, within a few months you should hear back from the court with news of the allocation of your court hearing date.
Attendance is not a legal requirement, unless there are dependent children aged below 18 involved. In this case the Applicant(s) must be present to demonstrate arrangements have been agreed for the care of their children.
Divorce granted
Assuming all legal requirements have been met, during this hearing you can usually expect a Divorce Order to be granted on the spot.
However, the divorce will not take effect for a further one month and one day after the Divorce Order is granted. On this date, the Applicant(s) will have access to a court-sealed copy of the Divorce Order/Certificate. This is the point at which the legal process reaches its conclusion: you and your former spouse are now legally divorced. You cannot remarry before the Divorce Order has taken effect or you may be charged with the crime of bigamy.
Further information on the steps needed to be legally granted a divorce in Victoria can be accessed through the Victoria Legal Aid website, or by contacting the Federal Circuit and Family Court of Australia.
It’s important to note, however, that this is only one part of the process when it comes to separation. Property settlement, custody arrangements, child support, and spousal maintenance will all need to be dealt with separately.
Most people will get divorced after they have at least resolved their property matters. This is because you only have 12 months from the date your Divorce Order becomes effective in which to apply for property orders or spousal maintenance orders without first needing to obtain special permission of the court. Please refer to our articles on splitting assets during divorce, property settlements and parenting matters for more detail.
How can Rayner Song help?
Hopefully the above information has helped to dispel the myth that divorce always has to be a long, drawn-out, onerous process.
By seeking effective legal advice you can hand over the technical and bureaucratic elements to an expert. This will give you more capacity to focus on the emotional implications separation can bring for you and your family.
Rayner Song Family Lawyers offers clients access to some of the best family lawyers Glen Waverley has to offer. We are known for expertly and sensitively handling every type of separation, from the quick and easy, to the complicated and contentious.
If you’re thinking of applying for a divorce or need to talk to somebody in confidence about any other family law matter, get in touch with us today. Call (03) 9803 5673 to organise an initial consultation.