How long does it take to get a divorce in Australia?

If you’ve made the decision to divorce or are considering it as an option, you might be wondering what to expect from the process, and more specifically how long that process is likely to take.

It’s no secret that divorce can be a hugely stressful time, so it’s important to understand your options, as well as the implications of those options on the length of time you’ll be living with the realities of this life-changing process.

When using the term ‘divorce’, people can be referring to a number of distinct elements involved with the separation of a couple. These range from the legal aspects, to the division of property, assets and liabilities, and decisions around the custody and care of dependent children.

In Australia, matters associated with divorce are dealt with by the family court, in accordance with the Family Law Act 1975. The timelines attached to divorce proceedings vary greatly depending on the complexities and circumstances of each individual case.

Unfortunately, because every divorce is different there is no cut-and-dried answer to the question of how long it will take. Obviously, any separation involves a multitude of factors, the specifics of which will inform the different actions taken to resolve all associated matters.

Divorce timelines can be impacted by many factors, not least whether both spouses are cooperative, or a level of acrimony exists that leads to one person complicating things for the other.

Making a divorce application

Before the process of getting divorced can officially commence, the following eligibility requirements need to be met and demonstrated:

·  that the marriage has broken down irreparably.

·  that the couple has been separated for a minimum, continuous period of 12 months and one day. (This separation can occur under the same roof, or be a physical separation which sees both parties reside at different addresses.)

·  where children are involved, that appropriate arrangements are in place for them.

It is only once you’re confident these stipulations have been met that a divorce application should be prepared and lodged with the court.

The next order of business is likely to be a court hearing. Assuming the requirements listed above have been met to the satisfaction of the court, a Divorce Order will be granted on the day of the hearing. That Divorce Order will not become effective for a further one month and one day, and only after that time do you become legally divorced. And remember, you cannot remarry until the Divorce Order has become effective!

With all of this considered, and while there are no guarantees or absolutes, a reasonable estimate of the likely time between filing an application to the court and a divorce being granted is around three-to-four-months.

Of course, there can frequently be anomalies, but assuming things progress smoothly without any substantial delays, the process described above – from initial separation to a Divorce Order being issued by the court – should take around 17 months.

Potential complications and hold-ups

In cases involving a sole application, it’s necessary for one partner to ‘serve’ the other with the relevant documentation.

In some instances, the partner doing the serving will experience problems, either because their spouse has become difficult to track down, or they refuse to accept service. In the latter scenario, it is highly recommended that the applicant engages a professional process serving agent, to help expedite the process.

If efforts to serve the other party remain unsuccessful, the process of ‘substituted service’ or ‘dispensation of service’ would need to be enacted, which will push the end date out even further.

There is also the possibility that, once the application has been made, the court may be dissatisfied with certain elements of it. For example, the arrangements you outline for the care of your children might need to be revisited, or it may become apparent that the 12-month separation requirement has not been met.

If revisions need to be made to the application at the request of the court before the proceedings can progress further, this will also increase the overall time frame associated with the divorce.

Beyond the Divorce Order

Once a Divorce Order has been issued, this is unlikely to be the end of the process. The Divorce Order does not finalise financial, parenting, spousal maintenance or child support matters. These matters will need to be resolved via separate legal processes. 

Divorced parties have a period of one year to apply for court orders related to the division of assets and spousal maintenance. If these applications are made beyond the twelve month period, special permission will need to be sought from the court, which is not guaranteed to be granted.

The process of dividing your property can be incredibly lengthy, particularly in cases that are acrimonious, and where one party deliberately tries to make things difficult for the other.

The good news is a legally binding property settlement can be finalised prior to applying for your actual divorce. This means the separation of assets can be worked out immediately after the decision to divorce has been made, with the actual legal elements happening later.

Decisions around the care of dependent children

Where dependent children are involved, many couples are perfectly capable of working together to reach an agreement about custody and parenting matters, for the benefit and wellbeing of the whole family.

The majority of separating couples opt for a non-binding parenting plan, which is essentially a written mutual agreement outlining the ongoing responsibilities of each parent, the practical arrangements for the child’s care, and how the parents intend to consult on important issues relating to their children going forward.

These sorts of plans can be developed independently by the couple, or with input from each parties’ lawyer. Parents wanting a legally binding and enforceable plan relating to their children can ask the court to issue consent orders. These can generally be organised within one to three months of the application being made.

The approach of coming to an agreement for the ongoing care of dependent children without intervention from the court described above is strongly recommended, firstly for the benefit of the children, and secondly because of the comparatively speedy nature of this approach in reaching a resolution.

However, in cases where this is not possible alternative steps must be taken. These steps might involve mediation through a professional Family Dispute Resolution service, still with the ultimate goal of developing a parenting plan, but with the added assistance of a mediator. Alternatively, the couple might turn to their lawyers to negotiate the terms of a parenting plan on their behalf.

These additional steps can add a handful of months to the overall process, or even longer if things like medical evidence is required before an agreement can be reached, or if there are geographical considerations associated with one parent moving to a different state or even country.

If these additional steps either fail to generate an outcome or are inappropriate to begin with, the couple will need to make an application to the Family Court of Australia or Federal Circuit Court of Australia, effectively asking them to make the decision on their behalf. More on this a little later in the article.

Division of assets

While a legally binding property settlement is not technically a legal requirement of divorce, it is highly advisable in order to protect yourself, your property and your finances, both now and in the future.

The most straightforward way to go about this is for the divorcing couple to mutually agree on what the division of their property, assets and liabilities will look like, and finalise it with a Consent Order or Binding Financial Agreement.

A Consent Order is an agreement between two ex-spouses on how to divide their assets and debts, before submitting it to the court for its agreement. If the court determines the terms to be just and equitable, a Consent Order will be issued. Attendance at a hearing by the divorced couple is not required, with the entire process usually managed administratively.

A Binding Financial Agreement is a written document outlining how assets and debts will be divided, and can also record an agreement about spousal maintenance. Both parties must have first obtained independent legal advice before signing the document. This type of agreement does not need court approval, and so is usually used to document an agreement that is not necessarily fair to one party.

Being able to negotiate a property settlement without litigation gives both parties more power over the negotiating process, in contrast to the alternative option of a decision being imposed on the couple by the court. It also offers a much faster resolution and can be done and dusted in a matter of weeks or months, provided both parties are willing to be fair and flexible (within reason, of course!)

In cases where such an agreement cannot be reached, the divorcing couple may need to apply to the court for a Property Order, which will see the court make an assessment of your total assets, liabilities, and financial resources, before taking steps to decide who should get what.

Seeking legal intervention: What to expect from the process

Whether it’s disagreements over parenting or property disputes, if the litigation route is the one you ultimately go down, be prepared, because it’s a lengthy one!

Prior to going to court, some negotiation is usually a condition, through the exchange of letters, emails and legal documents, as well as face-to-face discussions and mediation. This is done with a view to exploring the possibility of reaching an agreement without judicial intervention.

The process also involves long waits for court dates and judicial availability, as well as delays resulting from disruption to the system caused by COVID-19. With all of that in mind, it can take two to three years to get a court to make its final decision in relation to parenting matters and property issues. Most court matters are able to be resolved without a need for a trial, and those matters ordinarily finish within six to 12 months of proceedings being commenced.

Getting a head start on dividing your assets

The process of dividing your property can be incredibly lengthy, particularly in cases that are acrimonious, and where one party deliberately tries to make things difficult for the other.

The good news is a legally binding property settlement can be finalised prior to applying for your actual divorce. This means the separation of assets can be worked out immediately after the decision to divorce has been made, with the actual legal elements happening later.

Need some advice?

For further information about getting a divorce in Australia, including the fastest and least painful routes options, contact Rayner Song Family Lawyers for expert advice, delivered with understanding and compassion.

Our people are some of the best family lawyers Glen Waverley has to offer. We are known for expertly and sensitively handling every conceivable divorce scenario, from the straightforward and cordial, to the complex and acrimonious.

If you’re planning to apply for a divorce or are seeking advice on any other legal family matter, get in touch with us on (03) 9803 5673 to organise an initial consultation.