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On this page we will share the answers to some of the common questions we get from our clients who come to us for answers about how to get a divorce in Australia. When considering how to apply for a divorce, you will benefit from knowing the following:
- Important eligibility information including timelines
- How to make an application for a divorce
- What can be done if only one person wishes to apply for a divorce
- What to be aware of if considering a DIY divorce; and
- What can be done now if you are separated.
Eligibility for Divorce
Before looking at how to get a divorce in Australia, it’s important to first make sure you are eligible for a divorce in Australia.
Timeline Requirements
From the date of separation, you have 12 months and one day to wait before you can formally apply for a divorce.
It’s important to ensure that both you and your former spouse agree on the date of separation. We do see instances of disagreement or confusion about the official date of separation. This can impact on whether a divorce will be able to be applied for on a specific date.
You don’t need to be living separately to be considered ‘separated’ but you do need to both be clear that the relationship has ended. We have seen instances where one person believed the relationship was over while the other believed they were still trying to make things work. This is often the case where two people continue to live together after a conversation about separation has occurred.
There are circumstances where the Court may ask for proof of what happened or what was said on the date of separation to indicate both parties understood the separation was occurring. That doesn’t mean both parties have to be happy about the decision, just that there were sufficient actions or words exchanged that clearly communicated the desire for separation from that day forward.
If you have been married for less than two years, there is an additional step in the application process.
How to Get a Divorce in Australia if you have Been Married Less Than Two Years
If you have been married less than two years, you are still able to apply for a divorce, but you will need to provide evidence of counselling with the application. Your counsellor should sign paperwork that shows you have discussed the possibility of reconciliation.
There are some special circumstances where exemptions can be given, for example if you are unable to find your spouse or if there is a history of violence.
How to Get a Divorce in Australia if you were Married Overseas
If you were married outside Australia, you can apply for a divorce in Australia if one or both parties are an Australian citizen, Australian resident or if Australia is your permanent home.
If this is the case and your marriage certificate is written in a language other than English, you will also need it translated into English.
Do Both Parties Have To Agree To A Divorce?
No, both parties do not have to agree to a divorce. There is something called a sole application that can be filed (see more information below).
How To Apply For A Divorce | Where To Start
There are two main ways to apply for a divorce. If a minimum of 12 months and 1 day has passed since the date of separation, you can submit either:
- A joint application; or
- A sole application
The process varies slightly depending on which approach you need to take.
Joint Application
This is when both people from the marriage apply together for a divorce. Typically one party completes the paperwork and then gives it to the other to sign. Only one application fee is payable.
Sole Application
If you are applying for the divorce independently, this is called a sole application. In this case, the person submitting the application is the ‘applicant’ and the other person is the ‘respondent’.
The respondent does not need to sign the application for it to be valid but they do need to have received the application, or have been ‘served’ the divorce papers. You do not have to serve the papers yourself, but the person serving needs to be an Australian citizen over the age of 18.
Signatures need to be collected so that further paperwork can be submitted. In the case that a signature is not given, this needs to be indicated on the paperwork, along with evidence that the papers were received.
An application must be served at least 28 days before the court hearing if they are living within Australia. If they are located outside Australia, the documents must be given to the Respondent at least 42 days before the court hearing takes place.
Do I Need to Go to Court for the Divorce Hearing?
If you have children and parenting arrangements have been sorted, then a joint application to the Court means that neither party is required to attend Court for the divorce hearing.
In the case of a sole application, the main consideration for Court attendance is whether there are children from the marriage. If there are no children, then no one needs to attend Court. If there are children, then at least one party must be present, often the applicant.
Can I DIY My Divorce?
In short, yes you can. Documents are available publicly and for free. However, if you are considering doing this process yourself, there are a number of risks and common errors to be aware of.
Below are some examples of how a DIY can go wrong and what we see can arise for people who do not seek advice from a family lawyer before making their application:
- The Court dismisses the application;
- A Court orders a re-submission of paperwork;
- Re-negotiation of any previously finalised financial or parenting agreements; or
- Divorce hearing put off or delayed
While these are some of the issues, the biggest issue is that it creates additional stress for you and also ends up costing more than if you had sought legal advice to help you with this process. It also adds additional time delays to a process that most people want to have wrapped up in a more timely manner.
A family lawyer’s involvement doesn’t mean that they have to do it all for you. Our lawyers help many people get the DIY process right so you don’t end up delaying the process as a result of:
- Incomplete or incorrect paperwork;
- Not supplying correct or sufficient documentation as evidence of dates and claims;
- Incorrect details or not recording change in details, such as purchasing or selling of property post-separation
You are right to feel concerned about these risks and we empathise about the challenges faced by people wishing to navigate these processes themselves. Because the consequences can be serious, we always suggest getting legal advice early on in the process.
You should be aware that after the divorce takes effect, time limits apply to commencing proceedings for property and/or financial settlement. You have only 12 months to finalise your property settlement from the date your Divorce Order has been granted by the Court.
Importantly, legal advice is not a commitment to having a lawyer represent you in Court or even a commitment to having to go to Court. Rather it is a way for you to gather information on how to get a divorce in Australia and about a system and processes that are unfamiliar and can be complex.
What You Can Do Immediately Upon Separation
Many people believe that a divorce is the first step or the all inclusive final stage when ending a marriage. The truth though, is that there are many small steps that can be taken, from the date of separation.
A Divorce Order only legally declares the end of your marriage, it does not include any practicalities to be put in place or determine who will get what assets. There are many other arrangements to be considered that a Divorce Order does not cover.
If you are a parent, it is likely one of your top priorities is working out who will have the children and on what days. You can start this process from the date of separation. Other aspects of your separation and divorce that don’t need to wait include:
- Making arrangements for how assets will be split, including houses, businesses, investments etc;
- Deciding on where to live and how these costs will be paid;
- Making sure accounts are secured, passwords changed etc; and
- Start taking care of your own mental health, consider booking an appointment with a counsellor.
How to Get A divorce In Australia | Getting Started
We trust this information about how to get a divorce in Australia has been helpful. Below are some links to additional helpful information about separation and divorce.
You probably know someone who has been through a divorce and they will likely be offering their support and advice. It is important to remember that every divorce is different so what happened in their circumstances will likely differ from yours.
Divorce is a process that is unfamiliar to many of us. If you have children you will likely be negotiating how you will share time with your children between you, while also worrying about who will live where and get what. The paperwork and processes can feel daunting, particularly when already facing the emotional toll of your separation.
Whether you are planning to separate, already separated or are approaching the 12 month and 1 day minimum wait time, speaking with an experienced family lawyer is advisable. Small and large errors in preparation can create big issues down the line. Give yourself the best chance at going through this process in a way that doesn’t end up costing you more stress, time or money than is necessary.
Have you recently separated or are you considering separation?
Do you have concerns or questions that relate to how to get a divorce in Australia?
We can help you wherever you are based in Sydney. We have two office locations – Penrith & Blacktown – as well as phone and online consultations if preferred. Reach out to our team on 02 47 222 050.
Disclaimer: The content in this article provides general information however it does not substitute legal advice or opinion. Information is best used in conjunction with legal advice from an experienced member of our team.