Divorce hearings are heard and processed by the Federal Circuit and Family Court of Australia (FCFCOA), which reviews applications to ensure all legal requirements are met before granting a divorce order. Legal representation is not required; however, engaging an experienced divorce and separation lawyer can help avoid application errors and ensure that your divorce application is approved the first time. With the right guidance, you are better positioned to navigate the divorce process efficiently and minimise delays.
Divorce applications are settled during a divorce hearing
After you file your divorce application, you will receive a hearing date and a file number. At the hearing, the court registrar reviews your application to ensure it meets all legal requirements before granting the divorce order.
Divorce hearings are typically conducted electronically; if all requirements are satisfied, the hearing is mainly administrative. In most cases, divorce applications are settled during the hearing, and the divorce order becomes final one month and one day later, legally dissolving the marriage. Even though divorce hearings are conducted electronically, the usual Rules of Court, court procedures, courtesies, and formalities still apply.
You may request to attend the court hearing; however, attendance is generally not required for joint or sole applications where no children under 18 are involved. If the court requires you to attend for any reason, it is essential to make arrangements to attend. Failure to do so may result in the hearing being rescheduled or, in some cases, the application being dismissed until the necessary information is provided.
Will you need to attend your divorce hearing?
Court attendance is required in the following circumstances:
- If you have filed a sole application for divorce and there is a child of the marriage under 18, you must attend the court hearing to confirm that suitable parenting arrangements are in place. If the registrar is satisfied, the divorce will be granted.
- If the respondent (your spouse) has objected to the divorce being heard in your absence or files a Response to divorce opposing the application, you must attend the hearing.
- You must attend the hearing if you do not know where your spouse is to serve the divorce documents and are applying for substituted service or a dispensation of service.
While it is not mandatory, it is advisable to attend your divorce hearing if you are required to provide additional affidavit material to explain the particular circumstances of your relationship. For example, if there was a period of reconciliation during the separation period.
How will you know if your divorce is granted?
If all the legal requirements are met and the divorce is granted, it will be finalised one month and one day after the hearing. Your divorce order is proof of divorce and will be available online via the Commonwealth Courts Portal the day after it is finalised.
If your divorce is not granted, the Court Registrar will contact you, explaining the reason and what steps are required to ensure it is granted on the next hearing date.
Don’t confuse the divorce process with parenting and property matters
Many people mistakenly believe that filing for divorce automatically resolves parenting and financial matters. However, these issues are handled separately through their own legal processes. Divorce simply ends the marriage, while parenting arrangements and property settlements require separate agreements or court orders.
Property, parenting and financial matters can sometimes be addressed through binding financial agreements (BFAs) or prenuptial agreements if a couple establishes these provisions before their relationship breaks down. However, this is not always the case. Some people ask, “Do prenups work?” The answer is yes, provided they are properly drafted, legally executed, and meet the requirements set out under the Family Law Act 1975.
In cases without a binding financial agreement or prenup, one party may be eligible for spousal maintenance if they demonstrate financial need and the other party can provide support.
When children are involved, matters get even more complex. However, depending on your situation, there are ways to ensure a fair child custody arrangement.
When people think of court battles over finances and assets, they often assume this happens during a divorce hearing. These matters are entirely separate from the divorce process. Understanding this distinction helps provide clarity as you address the end of a marriage.
Parenting and financial matters are often more contentious and take longer to resolve
The divorce process is primarily administrative and requires a 12-month separation period before an application can be filed. Although administrative complexities may cause delays, they do not affect the overall legal framework, which provides certainty that the marriage will be legally dissolved.
In contrast, parenting and financial matters are separate legal processes that can take significantly longer to resolve. These matters often involve negotiations between you and your former partner, and when emotions run high, reaching an agreement that supports long-term familial relationships and financial stability can be challenging. While reaching a mutually acceptable agreement is always best, this is not always possible, and court intervention may become necessary.
Reaching an agreement outside of court is generally preferable, as court-imposed Parenting Orders or Property Orders are based on legal principles rather than personal preferences. Once a court issues an order, it is legally binding and enforceable, leaving little room for future adjustments without further legal proceedings.
To avoid delays and litigation, parties are encouraged to use alternative dispute resolution methods, such as mediation or Family Dispute Resolution (FDR), for parenting matters. These processes prioritise negotiation and fair outcomes, helping minimise conflict and legal costs while ensuring that parenting arrangements serve the best interests of the child and that financial settlements are just and equitable.
Parenting and financial matters can be settled out of court
While the court does not require parenting and/or financial agreements to be finalised before filing for divorce, it is highly recommended that the discussions begin early.
Parenting agreements
Parenting agreements can be formal or informal, and each differs in formality and legal enforceability. Agreements regarding children are often the most challenging aspects to negotiate during a separation, as they require balancing the best interests of the child with the rights and responsibilities of each parent. Reaching a fair child custody arrangement can take time, but understanding the legal framework can help.
Financial agreements
Resolving property and financial matters involves several steps, with options to reach an agreement independently or through legal processes. Even if a mutual agreement is reached, it is advisable to formalise it to prevent future disputes. A financial agreement covers the financial arrangements between parties and details how financial resources, assets, properties, and debts are to be divided.
Mediation
Mediation and other dispute resolution options are commonly used in Australia to resolve children’s and property settlement issues outside court. Mediation involves a neutral third party, known as a mediator, who facilitates discussions to help you reach a mutually acceptable agreement.
For parenting matters, Family Dispute Resolution (FDR) is often required before applying to the court unless exceptions such as family violence or urgent circumstances apply.
These processes are generally faster, less costly, and less adversarial than court proceedings, promoting cooperative solutions that focus on the best interests of children and equitable financial outcomes.
What is the divorce process in Australia?
To obtain a divorce in Australia, you must meet specific criteria. You and your spouse must have been separated for at least 12 months, and at least one of you needs to meet the jurisdiction requirements—be an Australian citizen, a resident, or have lived in Australia for at least 12 months before applying. A valid marriage certificate is also required.
The application can be filed either jointly or individually as a sole applicant. If you are filing as a sole applicant, it is crucial to ensure the divorce application is properly served in compliance with the Rules of Court.
Do you need a lawyer for a divorce?
There is no requirement for a lawyer to apply for a divorce in Australia, as the process is designed to be straightforward. However, having legal assistance can help ensure your application is completed correctly, reducing the risk of errors that could delay or complicate the process. If your divorce hearing requires attendance, a lawyer can represent you and provide any additional information requested by the registrar. Beyond the divorce itself, legal support is invaluable when negotiating property settlements and parenting arrangements, helping you reach fair agreements and avoid unnecessary disputes.
Simplify your divorce with expert legal help
At Arcadian Legal, we know that divorce isn’t easy. Even though the legal process is straightforward, there is much to consider—filing paperwork, attending hearings, and ensuring everything is done correctly. On top of that, parenting and financial matters can add another layer of stress. It’s completely understandable to feel overwhelmed.
As an experienced Sydney family lawyer, we focus on you and making the process as smooth as possible. Whether you need help with your divorce application, attending a hearing, or negotiating parenting and property agreements, I am here to guide you every step of the way.
Contact Arcadian Legal to discuss your situation and explore how we can help you move forward.
