How divorce works in Australia and what you need to know

Article 18 November 2019

How Divorce Works in Australia

No one wants to think about divorce, but it is an unfortunate reality that marriages in Australia often do end in divorce. 

Currently, around 1 in 3 marriages will end in divorce* yet, somewhat surprisingly, many Australians are not familiar with the process of divorce and what help and advice is available to them.  

Thankfully, with the support of a good lawyer, can be a smooth process for both parties. 

What you need to know first

There are a few important things to understand before undergoing divorce proceedings, such as the following:

1) “Divorce” only refers to the ending of a marriage. It does not include property settlement or parenting arrangements, and these do need to be handled separately. What the divorce itself really does is provide recognition from the government that you are no longer married, and therefore have legal rights to re-marry. 

You can determine a property settlement or enter into a de facto relationship with another person while still legally married. Therefore, in many cases divorce is simply a formality.

Having said that, if you are still legally married when you pass away, there can be complications. This is because in the eyes of the law, the first preference is for your estate to be passed on to your legal spouse. For this reason alone, a divorce is a recommended step in finalising the end of a marriage. 

2) Divorce very rarely requires court action.  You should bring a lawyer on-board at the earliest stages to ensure that the proceedings are handled properly. You will not need to worry about showing up to court if there are no children of the marriage, below the age of 18. However, if there are children below the age of 18, the court will require you to appear on the day of the hearing. Your lawyer can appear with you, or on your behalf.  

How the process works

Firstly, if you have been married for less than two years, the law states that you need to get counselling before the application for divorce can be accepted. 

Secondly, you need to have been separated for at least 12 months before the application for divorce can be accepted. Ideally, you should be living separately, but there are provisions for “separation under one roof”, if you can prove that, you are no longer a couple.  

Application for divorce where you are still residing under the same roof with your former partner will need an Affidavit in support of that application. 

Thirdly, you should be aware that you can only ask for the court’s assistance in property disputes for 12 months after the divorce order has been approved.  Ideally, you should already have your lawyer working through the split of ownership and assets before starting the divorce proceedings. 

From there, the actual divorce process is relatively simple – if you have retained the services of a lawyer, they will make sure that you collect all the information that the application requires and then submit the relevant forms.  At this point there is a $910 application fee (not including any additional lawyer’s fees).

There are two different types of application – if you submit a joint application for divorce with your partner, there’s nothing further you need to do. If you file a sole application, you will need to serve the papers to your ex-spouse and have them countersign. 

Once the divorce order is final, you will be able to access and download it from the Australian Commonwealth Courts Portal. It’s a good idea to print the divorce order, on double-sided paper and in colour, for future reference. 

What you want from your lawyer

While the process of filing for divorce is relatively simple, it is often fraught with emotion and stress.  Disputes or arguments can be intensified, and for some couples, issues are raised that can make the process challenging.  

Most people will benefit from the services of a dedicated and experienced lawyer who can help with the case from the start, make sure that all of the necessary issues are dealt with, answer any questions you may have, and look after your best interests.

We encourage you to contact one of our experienced family lawyers at Colin Daley Quinn on 02 8556 0130 who can help you navigate the process.