Whilst the divorce rate in Australia has declined since 2021, for some couples, separation and divorce become a reality.
Applying for a divorce and obtaining a Divorce Order results in a legal dissolution of marriage. It does not change parental responsibilities and does not finalise property matters.
Set out below, is the general process required for filing for divorce.
What is required to file
To apply for divorce, the following is required:
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- That the parties have been separated for over 12 months and there is no prospect of reconciliation.
- A valid marriage must be proved, which includes providing a legal marriage certificate. This includes overseas marriage certificates including English translation if required.
- At least one of the parties must have a sufficient jurisdictional connection to Australia, including Australian citizenship or domicile in Australia.
Whilst the application for divorce seeks assurance that proper arrangements are in place for any children under the age of 18, again, it does not affect nor put into place parenting arrangements.
Who can draft the application
An application can be completed by a party to the marriage through the Court’s DIY Divorce kit or through a solicitor who can draft the application on a party’s behalf.
Filing and costs
A divorce application can be made solely by one party or jointly by both parties. There is a court-imposed fee to file for divorce (presently $1,170), which can be reduced in certain circumstances.
Serving the application
If a divorce is a sole application, it will need to be served properly upon the other party by a process server, to a party’s lawyer and if normal service is not possible, a party may seek leave of the Court to serve the application by substituted means such as email or social media.
Divorce hearing
Unless a party wants to appear for the Divorce Hearing, in most circumstances, the parties will not need to appear.
If a party wishes to contest a divorce application, both parties must attend the Divorce Hearing.
What happens after the divorce order is made
Once a Divorce Order is granted, the divorce will take effect 1 month and 1 day from the date it is granted by the Court.
Considerations before and after filing for divorce
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- If a party is concerned there may be any VISA issues, they should seek immigration advice prior to filing an application for divorce.
- Once a Divorce Order has been granted, any property or spousal maintenance proceedings must be started within 12 months, with any application outside of this timeframe required to seek leave of the Court to commence.
- That it is important to review and update your estate documents, ensuring ex-spouses are removed from your Will, Power of Attorney and Enduring Guardian documents.
- To ensure you keep a copy of your Divorce Order for your records.
- That if you are planning to remarry, you ensure that this is organised for a date after the Divorce Order takes effect, not when the Order is made by the Court.
- That a Divorce Order can be appealed under certain circumstances and that there is a strict timeframe in which the Order can be appealed.
If you have questions regarding applying for a divorce or would like assistance with your family law matter, please contact our firm to make an appointment with one of our family lawyers on (02) 4944 3322.
ABOUT NAOMI RIZZOLI
Associate
Naomi understands that family law matters are often turbulent and emotional and works with her clients empathetically to obtain the best result for each client.
Naomi studied law whilst working as a dance teacher and medical receptionist and utilises her experience working with people of all ages to help understand the needs of her clients and build rapport with them. She understands that family law matters are often turbulent and emotional and works with her clients empathetically to obtain the best result for each client.
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