The Australian Divorce Process
Clients frequently tell us they “want a divorce” when what they really mean. Is that they want to settle a property settlement dispute with the other party or figure out their parenting arrangements after separation.
While many clients mistakenly believe that the term “divorce” encompasses all aspects of separation. Including financial settlements, parenting issues, and child support lawyers, the truth is that the divorce process is usually the most straightforward and uncontroversial aspect of separation, and is distinct from resolving a financial settlement or child custody arrangements.
Getting a divorce simply means that the couple is no longer legally married — it is the formal, legal end to their relationship.
It is primarily an administrative procedure. But it does involve one or both parties filing a Divorce Order with the Family Court, and in some cases, attendance at a brief hearing.
However, as you’ll see below. Getting a divorce can have significant implications for other elements of family law, particularly property settlements and spousal support.
A statutory time restriction for applying to the Family Court for property orders and/or spousal support will be triggered if you obtain a Divorce Order.
The following are the answers to some of the most often asked questions about the Australian divorce process:
1. How Long Does It Take To Get Divorced?
It usually takes at least 4 months from the date of filing the application to obtain a final Divorce Order (the “Decree Absolute”). If you’re having trouble finding or serving the other party, give yourself a little more time.
If you intend to remarry, you must give enough time for the divorce to be finalized, especially if the other person is overseas, and cannot be identified. Otherwise intends to oppose the application for any reason (or no reason at all!). All of these things might add up to a large amount of time.
2. In Australia, What Are The Legitimate Grounds For Divorce?
In Australia, there is just one reason for divorce: irreconcilable differences demonstrated by a length of separation of at least 12 months.
To file a divorce petition, you must first:
be able to demonstrate that the marriage is irreversibly destroyed. This is proved by having been separated for at least 12 months and married for at least 2 years. Or by having received the appropriate Family Court counseling.
Since the Family Law Act was enacted in 1975, grounds such as unreasonable behavior, adultery, and desertion have been declared unlawful.
Prior to the Family Law Act of 1975, Australia’s divorce procedure was “fault-based,” which meant that blame had to be assigned.
3. Is It Possible For The Other Party To Object To A Divorce?
A party can only object to a divorce filing in extremely limited circumstances. The most common cause for opposing a divorce is a disagreement over the date of separation or jurisdiction. Such as when a contested date of separation does not meet the rigorous criteria of a 12-month separation term or when proceedings are already underway in another nation.
Failure to achieve an agreement on a property settlement or custody arrangements. On the other hand, is no reason to oppose a divorce.
If your former spouse wishes to contest your divorce. They must file a response to your application. Which must then be served on you or your lawyer prior to the hearing date.
The filing of a response may result in the court declining to grant the application at the first hearing. Delaying the issuance of the Divorce Order and necessitating a determination. By the presiding Judicial Officer after the parties have filed more evidence. When the Applicant claims to have been “separated under one roof,” this circumstance can occur, which can be difficult to substantiate.
4. Is It Possible For Me To Remarry After My Divorce?
Please keep in mind that remarrying before your divorce is official is unlawful. This normally occurs one month and one day after the court has granted your divorce. Bigamy is defined as marrying a third party before your divorce is finalized, and your subsequent marriage will be illegal.
Again, do not leave too little time between the expected grant of your divorce and your intended remarriage date, since things can go wrong. For example, you may be unable to contact your husband or the divorce may be challenged.
5. What Is The Impact Of My Divorce On My Will?
If you divorce, any gifts you leave to your spouse in your will become invalid. Separated spouses should update their wills as soon as feasible following their divorce to reflect their new wishes.
You may also want to remove your spouse from your life insurance and pension beneficiary designations.
If your Will hasn’t been amended since your divorce, you should seek legal assistance as soon as possible.
Do You Require Assistance?
Fill out the inquiry form below or call Family Lawyers Perth WA on (08) 6245 1262 for an initial consultation if you wish to apply for divorce or seek assistance on any other aspect of Family Law. Please visit our Divorce Page for further details.
The material provided above is generic in nature and does not constitute specialized counsel for your circumstance.