Divorce Frequently Asked Questions
1. How long does it take to obtain a divorce?
In most circumstances it will take four months to obtain a final Divorce Certificate. If you are obtaining a joint divorce the time will be shorter and if there are difficulties such as your spouse cannot be served time may need to be extended.
If you are considering
remarrying you shouldn't plan a remarriage without allowing enough time for
the divorce to be finalised.
2. How long must I be separated before I can apply for a Divorce?
You can only apply for divorce in Australia after you have been separated for a period of twelve months. If you have been separated, but reconciled for three months or more, then the twelve month period starts after the reconciliation. You are required to tell the Court if you have reconciled and the dates of reconciliation.
3. Do you need grounds to obtain a divorce?
To file an Application you must:
- Prove that the marriage is irretrievably broken, that is, that you have been separated for a period of no less than twelve months
- Have lived separately for a period of twelve months;
- Have been married for more than two years or attended the required counselling with the Family Court.
4. Will the Court need to know why I wish to divorce?
No. Family law in Australia is no longer fault based and so the reason for the separation will not be relevant.
5. What happens if I have not been married for more than 2 years?
If you have been married less than 2 years and want to apply for a divorce you must attend mediation with a Court approved family mediator to discuss the possibility of reconciliation and then file a Certificate completed by the counsellor with your Application. You must attend this mediation session with your spouse.
6. Do I need to be present in Australia to apply for a Divorce?
To be able to apply for a Divorce, at the date of filing at least one spouse must be:
- An Australian citizen;
- domiciled in Australia; or
- resident in Australia for 12 months.
7. Can my spouse refuse a Divorce?
Provided you have been separated for twelve months your spouse cannot refuse the divorce. Your spouse does not have to sign the Application or agree to it.
8. What happens if my spouse wants to oppose the divorce?
Your spouse must file a Response to your application and then serve the Response on you before the hearing date and you both must attend the hearing. If a Response is filed, the Court might not grant the divorce application at the first hearing and is likely to require you both to give evidence at a further hearing.
9. What happens if I cannot locate my spouse?
If you do not know the whereabouts of your spouse, you can apply to the Court to dispense with personal service. You must show the Court that you have tried to contact your spouse and demonstrate what efforts you have made.
10. What happens if my spouse and I still reside under the one roof?
It is possible to prove separation even if you still live in the same house as long as the three elements of separation are present. The action of separating must involve an open and complete break from the marital relationship and may include:
- the ceasing of sexual activity ;
- living in separate rooms;
- operating separate bank accounts;
- not sharing meals;
- not providing household services;
- not sharing mutual entertainment inside or outside the home;
- not representing to relatives, neighbours or friends that the marriage is continuing.
It is imperative that one spouse has expressed that the marriage is at an end. If the parties contend that they have separated even though they still live under the one roof they will have to give the court evidence of this and that evidence must be supported by one independent person.
11. Can we get divorced in Australia if we married overseas?
You can apply for divorce if you were married overseas as long as either you or your former partner:
- are Australian citizens or residents, or
- regard Australia as your permanent home.
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 the translator which:
- states his or her qualifications to translate
- attaches a copy of the marriage certificate
- attaches the translations
- states that the translation is an accurate translation of the marriage certificate
- states that the attached copy of a marriage certificate is a true copy of the marriage certificate translated.
12. Do I have to attend Court for the hearing?
You generally will not be required to attend Court. Where there are no children of the marriage under the age of eighteen years no attendance is required and the Court will grand your Application provided all documents are in order. Where there are children under the age of eighteen years an appearance is required and we will attend on your behalf. Sometimes it may be necessary for you to attend and we would inform you if that was necessary.
13. Can I remarry straight away?
It is illegal to remarry before the divorce becomes final and to do so is bigamy which is an offence. Your second marriage will not be legal. Your Divorce will not become final until the expiration of one month after the divorce was granted and it is recommended that you wait until you receive the Certificate of Divorce prior to remarrying. This is usually received a five or six weeks after the hearing.
14.
What happens if there are children of the marriage?
Where there are children of the relationship under the age of eighteen the court will not grant a divorce unless proper arrangements have been made for their care, welfare and development and those arrangements have to be explained to the Court.
15. Are children of a prior relationship regarded as children of the marriage?
All children that were treated as a family member immediately prior to separation are included as children of the marriage. This includes step children and foster children. The arrangements for all children have to be disclosed.
16. What about arrangements for children, maintenance or property?
The granting of a divorce does not determine issues of children, maintenance or property. These are separate issues which we may assist you with prior, during or after your divorce is granted.
Please note that you must file an application for maintenance or application for property division within 12 months of your divorce becoming final.
17. Can I revert back to my maiden name after my Divorce? What about my children's surname?
You can use your maiden name even before your divorce if you want. Changing your children's names is more complex and will require to consent of the other party or approval of the Court.
18. Does a divorce affect my Will/Superannuation?
Almost certainly it does, as any gift in a Will to a spouse becomes invalid on divorce. You should seek our advice about a new Will and nomination of a beneficiary for your superannuation and life insurance.