TL;DR
The divorce process in Australia involves five key steps: separation for at least 12 months, finalising property settlement (ideally before divorce), sorting parenting arrangements separately, lodging a divorce application (sole or joint), and attending a court hearing if required. Divorce does not automatically cover property or parenting matters. After divorce, you have 12 months to finalise property settlement. Seeking advice from family law specialists like Freedom Family Law can help you protect your rights, navigate the process smoothly, and minimise delays.
Introduction
If you’re starting the divorce process in Australia, it can feel overwhelming at first. This step-by-step guide will help you understand what’s involved and how to move forward confidently.
At Freedom Family Law, we are experienced family law specialists who help people navigate separation and divorce every day. Whether you’re thinking about applying for divorce, managing parenting arrangements, or sorting out property settlement, we’re here to support you.
Divorce in Australia: Key Things to Know
What is Divorce in Australia?
Divorce is the legal process of ending a marriage in Australia. It is managed under the Family Law Act 1975 and finalised by the Federal Circuit and Family Court of Australia.
Divorce formally ends the legal relationship between spouses, allowing them to remarry if they choose. It also starts the countdown on the property settlement timeframe.
No-Fault Divorce in Australia
Australia has a no-fault divorce system. This means the Court doesn’t look at who caused the relationship breakdown. You only need to prove that the marriage has irretrievably broken down.
This system aims to simplify the process and reduce unnecessary conflict, focusing on whether the relationship has ended rather than why.
Grounds for Divorce
To be eligible to apply for divorce in Australia:
- You must be separated for at least 12 months.
- There must be no chance of reconciliation.
If you’ve been separated under one roof, you can still apply, but you’ll need to provide additional evidence to the Court.
Important Distinction
- Divorce is separate from parenting arrangements and property settlement.
You must resolve these separately from your divorce application, either by agreement or through the Court if necessary.
Many people mistakenly believe that divorce covers all aspects of separation. In fact, parenting and property arrangements require distinct legal processes.
Step-by-Step Divorce Process in Australia
1. Separation
- Minimum Period: You must be separated for at least 12 months before applying for divorce.
- Separation Under One Roof: It is possible to be separated while still living in the same house. You must prove you were living separate lives, such as sleeping in separate rooms, having separate finances, and not sharing social activities as a couple.
- Keep Records: Document the date of separation, changes in living arrangements, and evidence of separate finances. Records can include text messages, emails, or witness statements confirming your separation.
Separation marks the beginning of the legal divorce process and is the foundation of your divorce application.
2. Property Settlement
- Act Quickly: A property settlement can and often should happen before applying for divorce.
- Time Limit: Once your divorce is finalised, you only have 12 months to apply for a property settlement. Missing this deadline may limit your legal options.
- Seek Legal Advice: Property settlements involve complex rules around assets, debts, superannuation, and financial resources. Getting expert advice ensures a fair outcome.
Property settlement determines how assets and liabilities will be divided between you and your former partner. It can include real estate, vehicles, savings, shares, superannuation, and debt.
What Happens If You Miss the Deadline?
If you do not finalise property settlement within 12 months of your divorce, you must apply to the Court for special permission to proceed. This can be difficult and is not guaranteed.
3. Parenting Arrangements
- Separate from Divorce: Parenting arrangements are not part of the divorce application. They must be handled separately.
- Options: Informal agreements between parents, parenting plans and consent orders through the Court
- Consider Mediation: Family Dispute Resolution (FDR) is often required before applying to the Court for parenting orders.
Parenting arrangements focus on the best interests of the child, including where they live, who they spend time with, and how major decisions are made.
Parenting Plans vs Consent Orders
- Parenting Plans: Informal, flexible, and not legally enforceable.
- Consent Orders: Formal, legally binding agreements approved by the Court.
Resolving parenting arrangements early can help minimise stress for children and ensure stability during the divorce process.
4. Divorce Application
- Who Can Apply: You can file a sole application or a joint application.
- Sole Application: One person applies and must arrange for the other party to be served with divorce documents.
- Joint Application: Both parties apply together.
- Divorce Filing Fee: A Court filing fee applies, though you may be eligible for a reduced fee.
- Serving Documents: For sole applications, your spouse must be served personally. If this isn’t possible, you may need to apply to the Court for alternative service methods.
If your spouse is difficult to locate or refuses to accept the documents, the Court may allow you to serve them through other means, such as email, social media, or a third party.
Required Documents for Divorce Application
- Proof of marriage (marriage certificate)
- Evidence of separation under one roof (if applicable)
- Parenting arrangement details (if you have children under 18)
Freedom Family Law can assist you in preparing and lodging these documents to ensure they meet Court requirements.
5. Court Hearing
A Court hearing is required if:
- You have children under 18
- The application is contested
- Joint applications with no children under 18 can often be finalised without attending Court.
At the hearing, the Court will review your application and supporting documents. If approved, the divorce order becomes final one month and one day after the hearing date.
Attending the Hearing
If you are required to attend, the process is usually straightforward. Divorce hearings are always conducted via a phone link, so attendance is not in person. Freedom Family Law can provide representation to ensure your case is presented correctly.
Key Considerations for the Divorce Process
“It’s critical to understand that divorce starts the clock on property settlement. From the date your divorce is final, you have just 12 months to file for property settlement if needed. In most cases, it’s best to finalise your property settlement before applying for divorce to avoid unnecessary pressure and ensure your financial interests are properly secured.”
— Seu, Accredited Family Law Specialist, Freedom Family Law
- Property Settlement Deadline: Divorce starts a 12-month deadline for finalising property settlements.
- Prioritise Parenting and Property: Most people should resolve property and parenting arrangements before applying for divorce.
- Sole Applications: Plan how you will serve the divorce application. If personal service is not practical, you can apply for substituted service.
Failing to serve the documents properly can delay your application. Freedom Family Law can advise on how to manage the service efficiently.
Tips for Navigating the Divorce Process in Australia
- Get Specialist Advice Early: Divorce lawyers can help you understand your rights, the divorce process, and your best next steps.
- Stay Organised: Keep records of key dates, financial documents, and communications.
- Protect Your Wellbeing: Professional support can make a big difference when navigating separation and divorce.
- Understand the Costs: Freedom Family Law offers fixed fees, competitive hourly rates, and flexible payment options, including deferred payment and Legal Aid for eligible clients.
Understanding each stage of the divorce process can reduce stress and help you make informed decisions.
How Freedom Family Law Can Help You
At Freedom Family Law, we specialise in family law and the divorce process in Australia. Our team of family law specialists are passionate about helping people like you find smart, cost-effective solutions that protect your future.
Why Choose Freedom Family Law?
- Family Law Specialists: We practise exclusively in family law.
- Decades of Experience: Led by Suzanne Stannett, an Accredited Family Law Specialist, our team has extensive experience with the divorce process, parenting matters, and property settlement.
- Smart, Strategic Advocacy: We’re committed to protecting your rights, your children, and your finances.
- Flexible Pricing Options: Including fixed fees, competitive hourly rates, deferred payment plans, and Legal Aid for eligible clients.
- Fast Response: We aim to return all calls, emails, and texts within one business day.
- Free Consultation: Your first meeting is completely free. We’ll help you understand your situation and plan your next steps.
[Book Your Free Consultation] or call 1300 365 108 to speak with our team today.
Conclusion
Going through a divorce can be stressful, but you don’t have to face it alone. With expert advice and the right support, you can navigate the divorce process in Australia with clarity and confidence.
Freedom Family Law is here to help.
[Contact us today] to book your free consultation.
Frequently Asked Questions
How long does the divorce process take in Australia?
Once you file your divorce application, the hearing is usually scheduled within one to three months. After the Court grants your divorce, it becomes final one month and one day later.
Do I need a lawyer for the divorce process?
You can complete the divorce application yourself, but it’s highly recommended to seek advice from experienced family law specialists – especially if you have property or parenting matters to resolve.
Can I do a property settlement after divorce?
Yes, but you must act quickly. You have 12 months from the date your divorce is final to apply for a property settlement through the Court. If you miss this deadline, you may need special permission to proceed.
What if I can’t serve the divorce documents?
If you file a sole application and can’t personally serve the documents, you can apply to the Court for permission to use alternative service methods such as email, social media, or service by a third party.
Can I get divorced if we’re still living together?
Yes. This is known as separation under one roof. You must provide additional evidence, such as changes in sleeping arrangements, financial independence, and witness statements, to show the Court you have truly separated.