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Divorce in Australia - FAQs |
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Looking for a Divorce Lawyer?What is involved in applying for Divorce?Getting a divorce is a simple procedure. So long as you can satisfy the Federal Magistrates 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).
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Divorce Lawyer
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A Guide to Divorce in NSW (Divorce FAQs)
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1. Do I need to get a divorce?That’s a personal matter, but we recommend you bear in mind these three important points:
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 cannot be saved. The main indicator of this break down is a separation period of 12 months. ^Top 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?
In any situation, we recommend seeking legal advice before applying for divorce. If you have already made the decision to separate, and are planning on living in the same house, you should immediately seek legal advice to ensure you do this in a way that would satisfy the Court down the track when the time comes to apply for divorce. ^Top 6. Are shorter marriages treated differently to longer marriages?Yes. If you’ve been married for less than two years, you will be treated differently by the Court. If this is the case you will only be able to apply for divorce after both parties agree to go to a counselling session, or if there are special circumstances (criminal etc). If one party refuses to participate in the counselling session, there are still avenues to take that would allow you to get divorced. If you’ve been married for less than two years and are thinking about separation, immediately seek legal advice. 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 our rights and obligations moving forward. 8. After we separate, when can I remarry? Is there a waiting period?
^Top 9. Do I need to get a lawyer in order to get a Divorce?No. In straightforward cases that don’t involve any conflicts, disputes about finances, kids and property, it is sometimes easier for the couple to apply for divorce without the involvement of a lawyer. However, the majority of divorces in Australia do involve one or more of the issues listed previously, which is why 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 still seek an application 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. ^Top 12. What is the FMC?FMC stands for the Federal Magistrates Court. Divorces are dealt with by the FMC rather than by the Family Court. For step-by-step instructions on how to apply for a divorce go to: www.familylawcourts.gov.au 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?In all Divorce Applications, we are required to provide to you the Court’s brochure entitled "Marriage Families and Separation”. Click the link for more information. 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 finalise your property settlement. If you wish to apply to the Court for property or maintenance, you must file a separate Application within 12 months of the date of the Divorce becoming final. Otherwise, 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:
15. What is an Uncontested Online Divorce and how much does it cost?
I.e. it is a simple divorce, with no property settlement or child custody related matters. 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, click here. |
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