DIVORCE 101: A Quick Guide to Divorce

Getting a divorce in Australia is not done in a breeze. There is no such thing as an instantaneous or a fast divorce. It is one of the most challenging of life’s experiences because not only does your marital status change but your whole life shifts as well. Undergoing this difficult phase in your life may be easier if you're informed about the divorce process.

  1. Get started with your divorce application.

Divorce law in Australia provides that you may apply for a divorce by yourself or together with the other party to the marriage. These two kinds of applications are called ‘Sole’ and ‘Joint’ Applications. To begin your divorce application, you may download the Affidavit for E-Filing, or you may visit the official website of the Family Court of Australia. If you are having trouble understanding legal words used in these forms, please consult with a lawyer to assist you. 

Before starting your application, it is very significant to know and understand the obligations that come from filing a Sole or a Joint Application. Required court attendance also differs in each kind of application. Expert advice from a lawyer is needed to be familiar with the consequences of the Sole and Joint applications, so that you may know the best application suitable for you.

  1. Eligibility Requirements 

Save your time by knowing if you are eligible to apply for divorce in Australia before making any moves. You or the other party to the marriage should be at least one of the following:

  1. Born in Australia or Born outside Australia with at least one (1) parent who was an Australian Citizen and your birth is registered in Australia.
  2. Has a citizenship certificate that proves that you are an Australian citizen by grant of Australian citizenship.
  3. Lawfully present in Australia and has the intention to continue living in the same country. Evidence that you are living in Australia for at least twelve (12) months should be provided. 

If you are unsure about whether you are eligible to file for divorce, you should seek help from a family lawyer to assist you in preparing your divorce papers in Australia. 

  1. Things to Consider Before Filing a Divorce 

Required divorce papers in Australia differ for each case. To guide you on the divorce papers and documents that you need, you may refer to the general guide below. However, Western Australia has a different law on divorce. It is best to check www.familycourt.wa.gov.au to keep you informed about the divorce procedure and consult a Lawyer.  

  1. Married for less than two (2) years 

A Counselling certificate is needed for the filing of your Divorce to prosper. To obtain a certificate, you need to attend counselling. If you are unable to participate in counselling with your spouse, an affidavit should be produced. In that case, you should get a lawyer to assist you in drafting this legal document. 

  1. Living under the same roof for the last twelve (12) months, but separated. 

If you have been in the same residence during the last twelve (12) months prior to the filing of your application in Australia, you need to provide extra evidence to prove that the marriage changed gradually or suddenly and that you and your spouse separated. An affidavit to support your divorce application is required to explain this change in your marriage and other circumstances, such as why you continued to live in the same house. To be able to accomplish these requirements, it is better to consult a lawyer.

  1. Children of Marriage

Custody orders or a custody agreement is a must if one of your utmost concerns in the divorce proceeding is the safekeeping of your child. To be advised about the best custody arrangement, which needs to be set out in the Divorce Application Form, you should seek a legal divorce expert to help you understand the child custody entitlements because it is not straightforward, and you might have trouble understanding legal jargon.

Before agreeing to the terms of support, schooling, health, contact, and care with your partner, you should talk to a lawyer and discuss the child custody entitlements. After accomplishing these, you are all set to finalise your Divorce Application Form. Make it easier for you by getting a lawyer to assist you in filling out the form and submitting it. 

  1.  Spouse location cannot be found 

If after all reasonable steps, you are unable to locate your spouse, an order to dispense with service or for substituted service should be submitted since the divorce application gets your spouse’s address for service. To learn more on how to serve divorce, seek a legal expert’s advice to make sure that you are compliant with the requirements. 

  1. Change of name to maiden name or married name

An affidavit explaining the difference in names should be filed if the name you are using is your married name or your married name. 

6. The Filing Costs

Fees differ from one location to another. Knowing in advance what costs you need to pay will help you lessen your stress and prepare for it. The most hassle-free way to get to know these is by seeking a lawyer’s help. Who knows? He/she might be able to reduce your fee because, in some parts of Australia, Divorce fees can be reduced to a minimal cost if you are eligible for a fee reduction. However, pieces of evidence should be provided for you to be eligible. If you do not qualify, you may still apply for a reduced fee due to financial hardships. Check Guidelines for reduced fee - divorce and decree of nullity application or seek a lawyer’s help for more details.  

7.       Attendance in Court Hearings

Asking yourself if you are required to go to Court? The required attendance differs for each circumstance. It is advisable to attend court hearings if you are required to provide additional affidavits to explain what certain situations caused you to file your divorce application. Cases in which additional affidavit might be required include where you’re living under the same roof with your spouse but in separate rooms or where you’ve been married for less than two years.

If it would be hard for you to attend, a telephone/video link attendance request form can be filed. It's best to note that your attendance at your divorce hearing may not always be required. Commonly, people need not attend their divorce hearings. There are only circumstances when you or your lawyer need to be present in the proceeding: First, if you’ve filed a sole application and there’s a child of the marriage who’s under 18 at the time of filing. Second, attendance is not needed if you’ve indicated that you want to attend in your application. If you filed a joint application with your spouse, you don’t need to participate in the divorce hearing at all since you both requested that the Court hear the case in your absence. You also don’t need to be present if you have no children who are under 18 and you’ve filed a sole application.

If you are not sure if you are required to attend, consult your lawyer to know the best advice for you.

6.       Finalising Divorce

Has your divorce been finalized? Once the divorce is granted, you should seek a divorce order from the Court, or your lawyer may request it for you. You may access your court order using this link: Accessing Divorce Orders. Divorce court orders are usually finalized one month and one day after granted unless there are particular circumstances and a court order is made to reschedule the finalisation date forward. 

However, a Divorce Court order doesn’t put an end to your financial relationship with your partner. One of the sore spots for any couple is the economic and custody split after a divorce.

Sorting out and dividing money, property, pensions, and children can be an added stressor and a very daunting task when you don’t know what you are entitled to in terms of your finances. The finalization of your divorce doesn’t mean an end to your financial relationship. You need to understand your rights, and you don’t want your partner to talk you out on what you deserve. You may refer to Property and finances after separation to understand better how to divide your assets after Divorce. 

You need a separate financial settlement to separate your finances and set out terms regarding custody. To successfully create a binding financial agreement, you should get legal advice from a lawyer and avoid unnecessary acrimony.   

7.       Seek Expert Help from Family Lawyers in Australia

Every divorce application is different, depending on your case or circumstances. Some may even experience stress and violence from their partner due to separation. If you are in this situation, you should not be afraid about your safety or the safety of your loved ones at any time during the process of leaving your partner. It is vital to note the police contact details, which can be found on Australian Federal Police Website

Government counselling is also offered for free via Family and domestic violence - Who else can help with family and domestic violence. Mental distress is also inevitable due to the arduous divorce process, and you may seek help from www.beyondblue.org.au and www.lifeline.org.au if you are experiencing these.

Make your life easier by consulting with a lawyer. It will not only save you time but effort as well. When you seek legal representation, you are assured that your rights are well represented. 

Essia Law can help you lessen your burden. We’ll guide you through this process and take out as much of the stress as we can.

Disclaimer: Any advice contained in our articles is general in nature based on information as at the date of publication and should not be acted upon without first obtaining professional advice on your particular circumstances.

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