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Divorce in Australia - FAQs

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What is involved in applying for Divorce?

Getting a divorce is a simple procedure. So long as you can satisfy the Federal Circuit Court that you and your spouse have lived separately and apart for at least twelve months, and that there is no reasonable likelihood of getting back together, the divorce should be granted.

Living separately and apart does not require you and your spouse to be living in different houses, so long as you can show that the relationship has ended.

Also, where there are children under eighteen years of age you generally have to show the Court that "proper arrangements" have been made for them. For example, their living arrangements are satisfactory and that the parent with whom the children are not living is spending time with the children.

If you separate, resume living together and then separate again, you can commence the calculation of the twelve months separation period from the beginning of the first separation period as long as there is only one resumption period of up to three months (but the resumption period cannot be included in the twelve months).

 

Divorce Lawyer - Alan Wright - Turnbull Hill Lawyers in Newcastle

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A Guide to Divorce in NSW (Divorce FAQs)

  1. Do I need to get a divorce?
  2. When is divorce final?
  3. How long do we need to be separated for before applying for divorce?
  4. What happens if we get back together for a brief period of time?
  5. Can separated couples live separately, but still reside in the same house?
  6. I have been married for less than two years, does this matter?
  7. If we separate, do we legally have to get a divorce?
  8. After we separate, when can I remarry? Is there a waiting period?
  9. Do I need to get a lawyer in order to get a divorce?
  10. If we weren't married in Australia, can we still get divorced here?
  11. Can I oppose a divorce application from my partner?
  12. What is the FCC?
  13. How will divorce impact my Will?
  14. What do I need to know before filing an application for divorce?
  15. What is an Uncontested Online Divorce and how much does it cost?

1. Do I need to get a divorce?

That's a personal matter, but we recommend you bear in mind these three important points:

  1. The only reason you must get a divorce is if you want to remarry;
  2. Immediately upon separation you can take action about all other matters ie. property settlement, spousal maintenance, arrangements for children and child support. You do not have to wait until you are divorced.
  3. Court proceedings for property settlement and/or spousal maintenance need to be commenced within 12 months of the divorce order taking effect. Outside of this period you need to seek special leave from the Court to proceed with a case for property settlement and/or spousal maintenance.

2. When is divorce final?

The divorce is not usually final at the Court hearing. If the Court finds that the separation requirements are met it makes a divorce order but this does not usually take effect until one month and one day after the hearing. You cannot marry until the divorce order takes effect.


3. How long do we need to be separated for before applying for divorce?

In Australia we have a 'no fault' divorce system. This means the behaviour of parties in the lead up to divorce is not relevant. The only thing that matters is that the relationship has completely broken down and will not be reconciled. The main indicator of this breakdown is a separation period of 12 months.

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4. What happens if we get back together for a brief period of time?

An application for divorce requires that you have been separated for at least 12 months. You must be able to provide proof that you have been separated for 12 months. During this 12 month period it is common for separated parties to decide to re-connect and give their relationship another chance. However, they could only do this for up to 3 months without re-starting the 12 month period again. For example, if they've been separated for 4 months, then get back together for 3 months and separate again for a further 8 months, this will count as a 12 month separation period and they will be able to apply for divorce. However, if they get back together and stay together for longer than 3 months, the initial 4 month separation period would no longer count towards the total number of months apart.


5. Can separated couples live separately, but still reside in the same house?

Divorce in AustraliaYes. The most important factor to consider is that the Court requires proof that you have been separated for 12 months. If it can be proved that you lived in the same house, however, led separate lives, this will suffice. There are a number of things that the Court will take into consideration in deciding whether separation has occurred including:

  1. Whether you still sleep in the same bed;
  2. Whether you still maintain a sexual relationship;
  3. Whether you still share meals and domestic duties
  4. Whether you still share money and bank accounts
  5. Whether you have told your friends and family you have separated; and
  6. Whether you continue to introduce yourself as a couple.

We recommend seeking legal advice before applying for divorce if you have been residing under the same roof.

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6. I have been married for less than two years, does this matter?

Yes. If you have been married for less than two years, you will only be permitted to apply for divorce after both parties have attended counselling. If there are special circumstances and counselling cannot occur an affidavit must be filed with the Court explaining why counselling cannot occur.

We recommend seeking legal advice before applying for divorce if you have been married for less than two years.


7. If we separate, do we legally have to get a divorce?

No. There is no law that forces separated couples to get a divorce. However, you will not be able to remarry someone else until you get a divorce. Staying married also impacts your rights and obligations in relation to financial matters and any Wills & Estates related documents that are in place. If you are planning on separating without getting an official divorce you should immediately seek legal advice to get an understanding of your rights and obligations moving forward.


8. After we separate, when can I remarry? Is there a waiting period?

You will not be able to remarry until the divorce order becomes final. In most cases, the divorce order becomes final one month and one day after the divorce hearing. It is common for people to plan their wedding very close to the date that they expect their divorce (to their previous partner) to be finalised. We recommend avoiding this at all costs because there are a number of factors that could delay the process and force you to re-schedule your wedding plans. However, once your divorce order is finalised, there is no waiting period. You will be able to remarry the following day.

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9. Do I need to get a lawyer in order to get a Divorce?

We recommend seeking legal advice before applying for divorce, however, it is not a legal requirement. The majority of separating couples will also require arrangements for property and/or children's matters and in these circumstances legal advice is always recommended.


10. If we weren't married in Australia, can we still get divorced here?

Yes. Even if you were married overseas you may apply for divorce in Australia if you (or your spouse) are an Australia citizen, can prove Australia is your main place of residence, and/or you can show that you have lived in Australia for at least 12 months prior to applying for divorce. If you were married overseas and are thinking about separating in Australia we recommend you immediately seek legal advice to determine if you are eligible.


11. Can I oppose a divorce application from my partner?

You can only legally oppose a divorce application if the 12 month separation period has not yet passed or the Court does not have jurisdiction. In order to oppose the divorce you must complete and file a 'Response to Divorce' and appear in person on the hearing date. It's important that you appear in person on the date of the hearing, as the Court may decide on the divorce application in your absence. If you are planning on opposing a divorce we recommend you seek legal advice immediately.

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12. What is the FCC?

FCC stands for the Federal Circuit Court. Divorces are dealt with by the FCC rather than by the Family Court.


13. How will divorce impact my Will?

The changes in your circumstances brought about by separation and divorce means that reviewing your Will is essential. We recommend that you read our Fact Sheet "Wills & Family Law".


14. What do I need to know before filing an application for divorce?

Divorce in NSW

In all divorce applications, we are required to provide to you the Court's brochure entitled "Marriage Families and Separation".

A divorce will also have an impact upon the time limits for making an application for property settlement.

If you and your spouse are divorced, you have one year from the date of the divorce to apply to the Court for Orders for property settlement or complete an Application for Consent Orders and file same with the Court or complete a Binding Financial Agreement. If this does not occur, you will need the Court's permission to apply and such permission is not always granted.

The granting of a divorce does not decide issues about property, maintenance or parenting arrangements for your children. If you wish to make arrangements for these issues, you can:

  1. Make an appointment to obtain advice; or
  2. Make an appointment if you and your spouse have reached an agreement so that such agreement can be filed as a separate application; or
  3. Attend upon a mediator to assist you in reaching an agreement in these matters.

15. What is an Uncontested Online Divorce and how much does it cost?

Do you qualify for an uncontested online divorce?An uncontested online divorce is a divorce service we offer that is suitable in situations where:

  1. You have separated from your spouse; and
  2. You have been living separately and apart for the last 12 months; and
  3. Your spouse consents to the divorce.

It is a simple divorce. We can process this type of divorce application using an online form, quickly and easily, without the need for costly appointments. To find out more about this service, or to proceed to the application form.


Family Lawyer NSWOur Divorce Lawyers Team:

Our Promise:

  • A focus on early resolution - to save you time & money
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