How to get a divorce in Australia

Many people are unsure how to get a divorce in Australia, or how divorce relates to financial and parenting matters. In many cases the process is straightforward, particularly when the application is completed correctly, the circumstances are clear, and both spouses cooperate. It is not always smooth, though. A spouse may oppose the application, the date of separation may be in dispute, or a spouse may avoid service of the documents. This article explains how the process works and where issues can arise. 

When can I apply for a divorce? 

You can apply for a divorce 12 months after the date of separation, once the marriage has broken down irretrievably. Couples can be separated under one roof, which can create uncertainty later, so the end of the marriage needs to be communicated clearly. Where you have separated under one roof, an affidavit from a third party may be needed to corroborate the separation. If you have been married for less than two years, you will usually need to attend counselling with your spouse to discuss the possibility of reconciliation before you can apply. 

Can I apply on my own? 

You can apply on your own or jointly with your spouse. A sole application must be served on your spouse or their solicitor, and how and when service happens matters. A sole applicant needs to serve the application at least 28 days before the court hearing date, or at least 42 days if the spouse is overseas. If you cannot serve your spouse after reasonable attempts, you may be able to apply for substituted service, or to dispense with service. You also need to meet certain criteria showing a connection with Australia. 

Will I need to go to court? 

If you have no children under 18, you generally will not need to attend court. If you do have children under 18 and you have applied on your own, a court appearance will be required. If you have applied jointly, you generally will not need to attend, even where there are children under 18. If a court appearance is required, a solicitor can appear on your behalf, and a solicitor can also accept service on your behalf. 

Divorce, property and children 

Financial and parenting matters are separate from the divorce itself, but they are connected. The Family Court will usually not grant a divorce order unless it is satisfied that proper arrangements have been made for any children under 18, so an application for divorce asks for some information about your children. While you can only apply for a divorce 12 months after separation, the same rule does not apply to property. Couples can resolve their financial matters at any time after separation. Keep in mind that you have only 12 months from the date a divorce order takes effect to start property or spousal maintenance proceedings, after which you need the court’s permission. A divorce order takes effect one month and one day after it is granted, unless the court orders otherwise, and a divorce can also affect the terms of an existing Will, unless the Will was made in contemplation of divorce. For business owners, the timing of the property settlement especially matters. 

A filing fee applies to a divorce application, and a reduced fee may be available if you are eligible. If the process feels confusing or complications arise, the divorce lawyers at Leach Legal can guide you through each step. As the largest family law firm in WA, we help clients understand the process and reach the outcome they need. Call Leach Legal to talk through your situation