Who gets what when we divorce? The house? The kids?
The granting of a divorce does not determine issues of financial support, property distribution or arrangements for children. It simply recognises that the marriage has ended.
A separate application will need to be filed if these are issues in dispute.
An important factor to be aware of is that once your divorce is final there is a time limit of 12 months to apply to the court for property settlement or spousal maintenance. If you do not apply within this time you need leave of the court. It is best to avoid being in this situation as leave may not be granted in certain circumstances.
When can I apply for divorce?
You can only apply for divorce in Australia after you have been separated for a period of at least 12 months. The requirements are:
- You were married
- You have been separated for at least 12 months and one day
- Your marriage has broken down and there is no reasonable likelihood that you will get back together, and
- You or your husband or wife are Australian residents or citizens or regard Australia as your permanent home.
What if I have been married for less than two years? Can I still get a divorce?
Yes, but there are a few additional requirements you need to be aware of. You must either:
- Attend counselling from a family counsellor or nominated counsellor to discuss reconciliation with your spouse, or
- If you have not attended counselling, seek permission of the court to apply for a divorce. You and your spouse must also have been separated for at least 12 months before applying for a divorce.
What if we are still living together – can we still get a divorce?
It is possible for you and your spouse to be separated but to continue living in the same home during the 12 months before applying for divorce. This is known as “separation under one roof”. This will include providing evidence of the change of your relationship from that of a married one, for example separating your finances, no longer having a physical relationship, socialising separately, cooking and eating separately etc. Evidence from a third party who has seen that you live separately in the same house is required by the court to corroborate your evidence that there has been a separation.
Who can apply for a divorce?
You can either apply on your own (as an applicant) or jointly (as a joint application) with your spouse for a divorce.
What if I was married overseas?
You can divorce if you were married overseas if either you or your spouse:
- Are Australian citizens or residents
- Regard Australia as your home and intend to live indefinitely in Australia.
- Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
You will need a copy of your marriage certificate. If your marriage certificate is not in English, you will need an English translation of the marriage certificate and an Affidavit from a translator (a qualified translator will know what this needs to contain – otherwise see the courts website).
So how can I get a divorce – what practically do I need to do?
To apply for a divorce, you file an application at the Federal Circuit Court closest to where you live and pay the filing fee.
Once these documents are filed then they need to be served. Service is the legal term for the requirement to allow the other party to be notified of the pending application for divorce involving them.
If your spouse is in Australia, the documents must be served at least 28 days before the court hearing. If your spouse is overseas, the documents must be served at least 42 days before the court hearing.
For information on how to serve the documents on your spouse see the court’s website.
Can I keep my address confidential?
Yes. You can use your post office box number, an email address or a friend’s or relative’s address on your divorce application. You can refuse to provide any address whatsoever although you will have to lodge an affidavit explaining to the court your reasons for not wanting to reveal your address. Legal advice should be sought about the content of the affidavit.
What if I can not find my spouse?
If you do not know the whereabouts of your spouse, you can apply to the court for the divorce to go ahead. However, you must show the court that you have tried to contact your spouse.
What if the application has errors of fact in the divorce application but I am happy for the divorce to proceed?
You can file a “Response to Divorce”. You need to state which facts you disagree with in the Response to Divorce. The errors might, for example, be dates of birth. You should attend the divorce hearing to make sure you are heard on these factual issues.
What if I do not want to get divorced? Can I oppose the divorce application?
If you have been separated for more than 12 months, there are few opportunities to oppose an application for divorce. This is because we have no-fault divorce in Australia. You can only oppose the divorce where:
- There has not been 12 months separation as alleged in the application, or
- The court does not have jurisdiction (see above).
If you choose to oppose a divorce application, you should complete and file a “Response to Divorce” application and appear in person on the hearing date. You need to set out the grounds on which you are seeking the dismissal in the Response to Divorce.
When am I officially divorced?
In most cases, after the divorce hearing, it will take one month and one day for the divorce to become final and a Divorce Certificate to issue from the court.
What if you plan to remarry?
You should not set a date for a wedding until your divorce becomes final. There could be a reason (whether you anticipate it or not) that your divorce is not granted at your first divorce hearing. You cannot remarry until your divorce becomes final. In fact, it is illegal to do so.
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