Unravelling the complexities of divorce can be daunting, especially as the Australian legal system works quite differently from other jurisdictions and from how we understand divorce to work in popular culture.. While divorce in Australia strictly refers to the legal termination of a marriage, many people often use the term to encompass broader family law matters such as property and parenting disputes. In this article, we will dive into the intricacies of divorce in Australia, shedding light on the step-by-step process of obtaining a divorce order and explaining what is not involved in the process Whether you are contemplating separation or seeking guidance through an ongoing divorce, this comprehensive guide will equip you with valuable insights into the Australian divorce landscape. In this article, Ramsden Family Law Associate, Amelia Coutts, decodes the world of divorce in Australia.
Disolving a Marriage
Divorce is, technically, only the dissolution of a marriage. In other jurisdictions, the word “divorce” describes all aspects of a marriage’s end, including “custody” and financial matters. In Australia, the word “divorce” describes the legal end of marriage only, though many people use the term to explain all aspects of family law, including property and parenting litigation. We also do not use the word “custody” because it implies ownership; instead, we refer to “live with” and “spend time” arrangements for a child as “parenting” generally.
Timing – Do I need to get a divorce before dealing with property and parenting? Do I need to do them all together?
No, you do not need to apply for a divorce or have a divorce order made before you apply for orders from the Court for asset division and/or parenting orders. You do not need to apply for divorce and property and parenting orders simultaneously. You can apply for property or parenting orders before, during or after you have applied or been granted your divorce.
When you apply for a divorce, the Court will not deal with property or parenting orders. If you do not have a child under 18 years of age or you make a joint application with your ex-spouse, the Court will deal with the divorce in “Chambers”, which means without a divorce hearing. If you are the sole applicant to a divorce application with a child under 18, you will be required to attend a divorce hearing and address the Court about the parenting arrangements for the child/children. The Court will only make an Order for divorce if it is satisfied that appropriate arrangements are in place for your child/children. The Court will not make parenting Orders for your child at the time of the divorce hearing. You must make a separate application for parenting Orders which will be heard separately. . You can apply for divorce at any time after 12 months of final separation, regardless of where you are up to with working out your property and parenting matter.
It is important to note that you have 12 months from the date a divorce order comes into effect to apply for property orders, even if you and your ex-spouse have reached an agreement and wish to apply for consent orders. For de facto couples, the time limit is 24 months from the date of final separation.
There is no time limit to filing an application for parenting orders for a child under 18.
Divorce process: The Steps to Divorce
- Gather your documents: Locate your marriage certificate, and if you cannot locate it, order a new one from the Registry of Births, Deaths and Marriages in the State or Territory in which you were married. If you were married overseas, you must make enquiries with the registry there to obtain a new certificate. If you were not an Australian Citizen at the time of your birth, youwill need to locate your Australian Citizenship certificate.
- Application: After you have been separated for at least 12 months, you can apply for a divorce by making a profile on the Commonwealth Courts Portal, the online Federal Courts Portal. This can be done jointly with your ex-partner or solely. The Application is all done online. You will be asked a series of questions and will have to upload your Marriage Certificate and if applicable, your citizenship certificate and any applicable family law orders or parenting plans. If there is an ADVO in force, you will have to upload a copy of this. At the end of the application, you will have the option to finalise the application. It will then lock, so be careful to make sure all your answers are correct as they cannot be changed after this stage. You will then be able to print out an Affidavit of e-Filing. The Affidavit of e-Filing will need to be witnessed by a lawyer or Justice of the Peace and then uploaded to the Portal.
- Divorce Hearing: You will then need to select a date for the Divorce Hearing. You should choose a date far enough into the future to allow service of the application. Your spouse must have the documents for at least 28 days before the Divorce Hearing if they are in Australia. They must have the documents for at least 42 days if they are located overseas.
- Service (sole applications only): You must serve your ex-spouse with a copy of the Application and Affidavit of e-Filing and a copy of the Court’s Marriage, Families and Separation brochure. This can be done by hand, but you cannot do this yourself. You will need to have someone over 18 do it for you or engage a process server. If your ex-spouse has a lawyer who has instructions to accept service, you can serve their lawyer. If not, you can serve your ex-spouse by post, but you must send and have them sign an Acknowledgment of Service (Divorce). Once the documents have been served, you must upload proof of service on the Portal. If your ex-spouse has signed an Acknowledgement of Service, you must sign an Affidavit Proving Signature and upload these. If a process server has served your ex-spouse, you must file their Affidavit of Service. Suppose you cannot locate your ex-spouse or otherwise have difficulty serving them: In that case, you should serve the Application to their last known address and workplace, to their email and mobile phone number, to any friends or family members who you think will provide the documents to them. You will then need to make an application for substituted service.
- Response: If your ex-spouse disputes any facts in your Application, they can file a Response. Even if your ex-spouse contests the divorce, they cannot stop a divorce order from being made if all the elements required are present, as Australia is a no-fault divorce jurisdiction.
- Divorce Hearing: If you have children under 18 years and made the application solely, you will need to attend the Divorce Hearing. If you made the Application jointly or did not have children under 18 years of age from the relationship, you will not need to attend the Divorce Hearing. If any changes have arisen since you made the Application, you must inform the Registrar and direct them to the corresponding question. You should be prepared to address the Registrar on the care arrangements for the child. If the Court is satisfied that jurisdiction and valid marriage are proved, service was effected, and proper arrangements are in place for the children, it will make the Orders. The Court may adjourn if they are not satisfied with these elements and direct you to do what is required to satisfy the Court.
- Divorce Orders: 1 month and one day after the Orders were made, the Orders will come into effect.
If you require assistance with a divorce application, please contact the team at Ramsden Family Law.
RAMSDEN FAMILY LAW – HOW WE CAN HELP
If you need guidance or assistance with your divorce application in Australia, the experienced team at Ramsden Family Law is here to support you at every step. Our dedicated family law practitioners understand the intricacies of the Australian legal system and can provide you with tailored advice and representation to ensure your rights and interests are protected. Whether you require assistance with property division, parenting arrangements, or navigating the divorce process, our compassionate and knowledgeable team is ready to assist you. Contact Ramsden Family Law today to schedule a consultation, and let us help you navigate your divorce journey with confidence and peace of mind. Remember, you don’t have to face this challenging time alone.
The content of this article is intended to provide general guidance to the subject matter and must not be relied on as legal advice. Specific advice should be sought about your circumstances.