It’s a fact that many marriages, unfortunately, end in divorce. There are all sorts of reasons for this and the process, even in a ‘conscious uncoupling’ where both parties agree to remain on friendly terms, there is a lot of pain and heartache.
Some social commentators point to the ease of divorce being the reason so many marriages break down. But how do you get divorced?
Under Australian law, the only legal questions a court considers when a divorce is granted are the marriage has broken down and that there is no reasonable likelihood that the parties will get back together.
If you’re planning to apply for a divorce it’s really important to get proper legal counsel. While you probably know people who have been divorced, and will want to give you advice, make sure you visit an expert. That might cost you some money – don’t be surprised if a one-hour consultation with a solicitor costs up to $400 – but impartial legal advice is important.
What follows is a high-level guide. If you have any doubts, then get proper legal advice.
Table of Contents
Who can apply for a divorce in Australia?
Under Australian law one of the parties in the divorce must either:
- regard Australia as your home and intend to live in Australia indefinitely, or
- are an Australian citizen by birth, descent or by grant of Australian citizenship, or
- ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
How long do you have to wait between separation and divorce?
You must also have lived apart for at least 12 months in order to apply for a divorce under Australian law. It’s possible to be separated but still share a residence.
Do you have to go to court?
TV is not often a good indicator of how the real world works. Many divorces don’t have any need to go through the courts.
If the application for divorce is completed by the two parties together, as a joint application, then there’s no need to attend a court hearing, even if there are are children under the age of 18 involved.
If there are any children under the age of 18 and the application for divorce is made by just one of the parties, then the applicant will need to attend court. While that sounds scary, the judges in these cases are quite understanding and often have a dozen or more parties submitting their applications in one sitting.
It’s not very formal and the process only takes a few minutes.
How do you apply for a divorce?
The Federal Circuit Court of Australia is responsible for handling divorces. They have an online form you can complete and submit. If your application is relatively straightforward then you probably won’t need a solicitor for this part.
The forms can be found here.
It’s important to note that you’ll need to have copies of any related documents such as parenting plans, court orders, financial settlements and any other documents required. The submission process lets you upload any required documents.
At the end of the application process, you’ll be provided with a reference number so you can track your application. And, if you’re making a sole application and have children under the age of 18, you’ll be able to set a date for your court appearance. Be prepared for the next appointment to be months away.
If you want your divorce processed quickly, a joint application is the fastest way.
How much does a divorce cost?
When you submit your application, you’ll be asked to part with $940 unless you qualify for a reduced fee of $310. The qualifying conditions for a lower fee are listed on the Family Court of Australia website.
If you have to go to court
If you’re making a sole application for divorce or need to go to court for some other reason in order to finalise a divorce, make sure you take hard copies of all relevant documents with you. Although the online filing process allows you to upload scanned documents, the courts’ systems can mess things up.
Having hard copies means you can submit hand the hard copies over in the event something has gone awry with the electronic submission process.
How long does it take?
Once the court accepts the application and a judge says the divorce is finalised, it becomes legal 30 days later.
If you have children under the age of 18, then you need a parenting plan. While in the past children were most often left with their mother as a primary carer with the father having less access, the courts have taken a different view more recently.
Parenting plans are about shared caring arrangements. There’s a focus on ensuring both parents are actively engaged in everyday activities like school drop-offs and extra-curricular activities.
Relationships Australia has a parenting plan guide and template that can be a handy starting point.
If you have difficulty negotiating a plan, then there are third-party mediation services that can help. Relationships Australia can provide access to qualified and impartial mediators.
It’s important to note that a parenting plan is not a legally binding document. If the couple can agree on a parenting plan, they can alter it without involving a mediator or solicitors and courts through mutual agreement. If you can’t agree on a parenting plan, then you can escalate things to consent orders which are legally binding and filed with the courts.
In the worst-case scenario, where the parties can’t agree, it’s possible the courts will make court orders on custody arrangements, taking the decision on what’s best for the children away from the parents.
The advice we’ve been given is that when there has been an agreed parenting plan and one of the parents wants to alter the agreement but the change can’t be agreed upon, then courts are likely to look at the parenting plan and question why it needs to be changed. So, while a parenting plan isn’t binding, it’s seen by the courts as an important agreement.
In many cases, dividing the finances can be the most stressful part of negotiating a divorce. This is where a solicitor can help although it can cost quite a bit of money.
Similarly to the parenting plan, the parties can either agree amongst themselves, file consent orders or get a court order to distribute the assets from the marriage.
It’s unusual for assets to be split equally between the two parties. A more typical split, according to the solicitors we spoke with, is a 60-40 split with the party that has lower earning capacity receiving the larger share.
It’s also possible, even if the parties agree to a different split (like a 70-30 division), that the courts could overrule that and redirect the distribution differently, or at least question why the split seems to overly favour one party over the other.
For married couples, you have 12 months from the date of the divorce to finalise the financial settlement. De facto couples have two years from the date of separation.
Some other tips
There are a few other things that can help make the process of divorce as painless as possible.
- Keep a diary of all dates, events and communications just in case you need to check something
- Keep copies of all documents in a safe place
- You might find being friendly is hard but try to keep emotions in check – losing your temper doesn’t help
- If in doubt – get legal advice
- Unless your friends are lawyers, they might not know all the nuances of the legal system
- Put your kids’ interests first – not your interest in the kids. Access to them is not a bargaining chip
- Important communications between you and your former spouse should be confirmed in writing just in case
- Communicate with your former spouse – even when it’s really hard to do
This article on how to get a divorce in Australia has been updated since its original publish date.