Law Blog

In order to be granted a divorce in Australia, the following matters (and others) must be proven to the court:

• The marriage exists
• The court has the power (jurisdiction) to consider the divorce application
• The marriage has ‘broken down irretrievably’
• The parties have been separated for at least 12 months
• The applicant has served the divorce application on his or her spouse (the respondent)
  
• That proper arrangements have been made for children of the marriage

Your lawyer will help you gather evidence to prove each of the points above, some of which are more complicated than others.

Here is a summary of some issues you can expect to encounter when applying for a divorce in Australia:

The Prospect of Reconciliation

As a legal requirement for being granted a divorce is that the marriage has irretrievably broken down, the chances of you and your spouse keeping the marriage alive must be considered. This isn’t that your lawyer is trying to convince you to stay in your relationship – it’s that your lawyer must be sure that this legal requirement has been met in order to convince the court to grant the divorce.

Find your Marriage Certificate

The court will need to see a copy of your Marriage Certificate as evidence that you are indeed married to your spouse. If your Marriage Certificate has gone missing, you should contact your local Registry of Births, Deaths & Marriages (or appropriate government department) to order a copy well in advance of the time you would like to apply for a divorce.

Rise above the Blame Game

In Australia, the element of ‘fault’ is not considered by a court when determining if a divorce should or shouldn’t be granted. It makes no difference, legally speaking, whether you were cheated on or your partner gambled all your money away... these considerations may be relevant for other matters, particularly regarding the caring arrangements of your children, but for the purposes of your divorce application itself, it is best to keep things blame free.

Consider Maintenance

The court has the power to require one person to pay maintenance (regular payments of support) to another in some situations, so consider if you or your partner requires financial assistance after the divorce has been granted.

Child support may also be an issue you should raise with your partner and your lawyer/s.

Consider Property

What will happen to your property after the divorce? Will your house or car need to be sold, and if so how much of the proceeds will be going to you and how much to your ex-partner? Talk these matters over with your lawyer.

Consider Caring Arrangements for Children

Who will care for your children after the divorce? You may already have care arrangements in place as a result of your separation, but if you and your ex-spouse will be moving apart after the divorce for the first time you may like the certainty of court orders to determine who will care for the children on what days. Parenting Orders can be very specific and can prevent many arguments if they are drafted correctly. Our Digital Parenting Plan Designer may be of some assistance.

Legal Fees

In addition to court fees for filing the application, a fee to the government for obtaining your Marriage Certificate (if necessary) and a fee to actually serve your spouse with the divorce application (if you need a bailiff or process server to assist), there will be a fee payable to your solicitor for their services in relation to arranging all of the above and their expert legal advice. You should discuss the cost of your divorce application with your lawyer or the court as soon as you make the decision that you would like to get a divorce.

Certificate of Divorce

Approximately 10 days after the court grants you the divorce, the court will issue you with a Certificate of Divorce. If the respondent to the divorce application (the spouse who did not initiate proceedings but was rather served with the application) wishes to receive a Certificate of Divorce, they must ensure that they will be sent one by the court individually.

Wills – Estate Planning

In some Australian jurisdictions, the granting of a divorce will affect the validity of certain provisions of the parties’ wills. If you are obtaining a divorce, ensure you speak to your solicitor about the need to draft a new will to ensure that your estate is transferred to your chosen beneficiaries.

Couples married less than two years

If you have been married to your spouse for less than two years, you will need to obtain a certificate from an appropriate counsellor to prove to the court that you and your spouse have attempted marriage counselling. Speak to your lawyer before you organise this counselling to ensure you are going about it in the right way and at the right time.

Caution – Obtain Legal Advice

The points above are by no means comprehensive and are meant to be a simple summary and introduction to the process of obtaining a divorce in Australia.

Although a point above may seem clear enough for you to act on immediately, ensure you speak to a qualified Australian Legal Practitioner before you proceed with any legal action.