Divorce Process In Australia: Things You Should Know

Getting a divorce is always a stressful experience. Seeking family law advice from a professional family lawyer in Sydney CBD like JCL Legal can help ease your stress when your marriage breaks down. If you’re going through a divorce process in Australia, here are some things you should know.

During these uncertain times, if you're looking for the best lawyer in Sydney CBD, NSW, Jeffrey of JCL Legal is available by mobile phone. Please call him on 0419 233 670.

---

What even is a 'divorce'?

The definition of divorce in Australia is simply the termination of a marriage. It's called a “divorce order” these days. It used to be called a divorce certificate. Before you apply for a divorce in Australia you or your spouse must : - regard Australia as your home and intend to live in Australia indefinitely, or - are an Australian citizen by birth, descent or by the grant of Australian citizenship, or - ordinarily, live in Australia and have done so for 12 months immediately before filing for divorce. By divorcing a spouse, you’re allowed to remarry. Some people separate and don't bother getting divorced. As long as you don't want to marry again, that's not generally a legal problem. You might have heard about separation and a marriage annulment. They are different from divorce, and in NSW, and are treated as such when dividing assets and legal responsibilities. When going through a divorce, you also have to plan your will, as your marriage and divorce affect your last will and testament. For more information on how your status may affect your property and assets, contact JCL Legal today.

How long does a divorce take?

Obtaining a final Divorce Order (the “Decree Absolute”) generally takes at least 4 months from the date of filing the application. You should allow for longer if there are problems in locating or serving the other party. But, basically, the divorce process is also depending on several factors which you must follow the timeline, such as filling out the application, service of documents, divorce hearing, and so on.

Then can I get a quick divorce?

In Australia, there is no such thing as an instantaneous or fast divorce. In order to apply for divorce, you must have been separated for at least 12 months before you can apply for a divorce. You can get back together once for up to three months without restarting the 12-month separation period. For example, if you are separated for four months, get back together for almost three months and then separate again for eight months, this will be considered a total of 12 months’ separation. However, if you were back together for four months only the most recent eight months would count as separation.

How much does a divorce cost?

This will depend on many things. Firstly, will a lawyer is engaged to assist? If so, are there any issues of an overseas marriage, children under the age of 18 years, or disputes over the date of separation or service of the Application on the other party? Generally speaking, legal fees for the “standard” divorce, where there are no delays or hiccups in e.g. service, etc., are likely to be around $1,200 plus the filing fee and disbursements. The filing fee for a divorce application (paid to the Court) is currently $930 from 1 July 2020. Concessions apply for holders of a Health Care Card or similar benefit. If legal representation is required in respect of a Divorce Application, naturally, legal costs will be incurred, however, the amount will depend on a range of factors.

What if we have been living together for the separation period?

It’s still possible to get a divorce but you need to provide evidence that you’re separated. In deciding whether you separated ‘under the one roof’ the court will consider whether: • you sleep together • you have sex or engage in sexual activity • you share meals and domestic duties (in a different way than when you were married) • you share money and bank accounts • your friends and family think of you as separated. If this applies to you and you want a divorce, you will need to prepare supporting affidavits.

Will the courts punish me because I had an affair?

Under Australian law, there is a ‘no fault’ jurisdiction, which means the divorce doesn’t require blame to be shifted. Instead, the court requires the 12-month separation to see that the marriage has ‘irretrievably broken down.

Can I remarry after divorce?

You cannot remarry until your divorce order becomes final. Be careful not to set your wedding date too close to the expected date of your divorce order becoming final. If there is a delay, you will not be able to go ahead with your wedding until the problem is sorted out and the divorce is granted.

What if I have a short marriage?

If you have been married for a short time (less than two years), you and your spouse must go to a counselling session with a family counsellor and file a certificate confirming this with the court. However, there are special circumstances where you may not be required to attend counselling. For example, if there is family violence or if you cannot locate your husband or wife. If you participate in counselling, but your spouse refuses, then you can still get a divorce. If neither of you attends counselling, then you will need to seek permission from the court to apply for a divorce.

What about my children’s arrangements?

A divorce does not sort out issues relating to children or property. Division of property must be done within 12 months of the date of the divorce order. If you can’t agree on arrangements for children, you can try to sort out your issues using family dispute resolution. If you can not reach an agreement then you may need to go to court. Please note that there are many child custody myths that people believe in Australia. Make sure you know your rights or contact the best family lawyer in Sydney, JCL Legal, today!

Can the other party oppose a divorce?

There are very few circumstances where a party can oppose a divorce application. The main reason for opposing a divorce usually lies in a dispute over the date of separation or jurisdiction, e.g. a contested date of separation may not satisfy the strict requirement of a 12-month separation period or proceedings may already be on foot in another country, etc. Failure to reach an agreement on property settlement or parenting arrangements is not grounds for opposing a divorce, however. If they do wish to oppose your divorce, then your former spouse must file a response to your application which then needs to be served on you or your lawyer in advance of the hearing date. The filing of a response might result in the court not granting the application at the first hearing as this may delay the making of the Divorce Order and require a determination by the presiding Judicial Officer after the filing of further evidence from both parties. This situation can arise where the Applicant claims to have been “separated under one roof”, which can sometimes be more difficult to prove.

Am I able to change my children’s surnames?

Changing a child’s surname is often hotly contested and can be a complicated issue. Generally, the Registrar of Births, Deaths and Marriages in most states will require an Order from the Family Court authorising the change of name if the other party will not consent. If the other spouse is deceased or is otherwise not named on the children’s original birth certificate, then a Court Order may not be necessary.

Hire The Best Lawyer in Sydney Who Cares About Your Needs

Getting through a separation can be emotionally troubling. If your marriage has broken down, we can help you navigate divorce proceedings to try and achieve the most amicable outcome. Our family lawyers are amongst some of the best in Sydney, who will take the time to listen to your concerns and work with you to determine the best way forward.

At JCL Legal, we consider your whole situation and take the time to understand your feelings and your needs. Contact us now and talk to one of the best Sydney lawyers!