According to the Australian Bureau of Statistics, there were 2.2 divorces per 1,000 people, with 56,244 divorces granted in 2021. And while on an upward trajectory compared to previous years, the process isn’t quite as straightforward. Many factors must come together in order for a couple to get a divorce in Australia. Let’s look deeper into the process of seeking a divorce and what you need to do if that’s your decision.
What are the most common reasons for divorce?
Divorce occurs for a number of reasons. Some factors may result in a higher chance of divorce. Some of the most common ones include:
- Lack of intimacy
- Money problems
- Substance abuse
- Domestic violence
- Poor communication
- Infidelity
- Limited education
- Feelings of insecurity
- Lack of trust
- No relationship equality
While some marriages can be saved through counselling and commitment on the part of both partners, not everyone will go the distance and divorce may be inevitable. In Australia, the average divorce occurs after 12 years.
Are you eligible to seek a divorce?
If you seek a divorce from your ex, you must first check your eligibility. Here are some things you need to consider:
- Are you a citizen of Australia, or do you live here and consider it your permanent home?
- Have you lived in Australia for at least 12 months before a divorce application?
- Have you and your ex been separated for at least 12 months?
- Do you have a valid marriage certificate recognised in Australia?
You may be eligible for divorce if you have answered yes to these questions. Couples married under 2 years may also be required to attend marriage counselling before formally applying for a divorce.
Same-sex married couples are recognised in the same way as other married couples. If Australian law recognises the marriage and they meet the divorce requirements of the Family Law Act 1975, they too can apply for divorce following the same procedure.
Can you divorce if you still live under the same roof?
Some ex-couples may live together even after separating because it is convenient and can help children adjust better to the new situation. If you are separated but living under one roof, you may need to provide an affidavit explaining your changed situation if you intend to divorce. The same rule of being separated for at least 12 months applies. You will also likely need to explain your reasons to continue living under the same roof even after the relationship has broken down. Some factors to prove you have separated include:
- Closing joint bank accounts and opening individual ones
- Changes to sleeping arrangements and household duties
- Separate budgets and expenses
- Changes to how a couple attends social functions
- Evidence of any separation announcement on social media or to family and friends
- Changes to email addresses and telephone numbers
- Absence of family outings and shared activities
- Any other relationships
The court will consider all relevant information about the separation before deciding on divorce. This process can be complex and lengthy, which is why it is important to be well-prepared.
Who is at fault in a divorce?
Since 1975, Australia has followed a no-fault divorce system. This means neither party needs to show that someone is at fault following a marriage breakdown. You only need to show that the marriage has broken down with no chance of reconciliation, along with a separation of at least 12 months.
The no-fault clause was introduced to reduce the hostilities involved with a divorce and to encourage more amicable settlements through mediation and dispute resolution, as opposed to heated courtroom battles that can be detrimental in the long run.
What is the process of applying for divorce?
To initiate the process of applying for divorce, you will first need to eFile an application for divorce. This can be done on the Commonwealth Courts Portal. You can file a sole or joint application depending on your personal circumstance.
As a sole applicant, you’re the only one who needs to sign the Affidavit for eFiling and it should be witnessed by an authorised person such as a lawyer or Justice of Peace. You then need to serve the divorce documents to your ex. You are not allowed to personally serve the documents. For Australian-based exes, documents should be served at least 28 days before the divorce hearing. Documents should be served at least 42 days before the hearing for ex-partners based overseas.
For a joint application, both parties are treated as joint applicants. As such, both must sign the Affidavit for eFiling in the presence of a witness. The witness can be different and it doesn’t need to be signed at the same time. You will not need to serve the divorce document.
Once the application form is filled and signed in front of witnesses, you will be given a hearing date and file number. All divorce hearings usually occur online unless advised otherwise. You will receive all information about it before your hearing date.
Generally, you need to attend a divorce hearing if you are a sole applicant and if you have children under 18 at the time of application. You may also need to attend a hearing if your ex has filed a Response for Divorce. In the case of a joint application, the decision to attend a divorce hearing is up to you.
If the court grants you and your ex a divorce, it is finalised one month and one day after the divorce hearing. After that, you can download the divorce order.
What documents will you need?
Before starting your divorce application, it is sensible to gather all your documents to make the whole process smoother. Some of the documents you need include:
- Marriage certificate
- Counselling certificate (if under 2 years married)
- Proof of residency or citizenship
- Visa documents (if not a citizen)
- Family violence order (if applicable)
- Other orders (parenting orders, binding financial agreements, property orders, child protection orders)
We often get asked this question: do prenups work? Prenups are legally known as binding financial agreements in Australia and work when prepared in accordance with Australian law.
Remember that you’ll need certified copies as you cannot give original documents to the court. Once you have all these documents in place, you can prepare an Affidavit to be filed with your divorce application.
What happens to children, property and finances in a divorce?
While connected, the law looks at property, children and finances as separate from a divorce. This means property and child custody matters are not part of the main divorce application. A divorce application does not decide issues regarding child custody, property and finances. To handle these issues, you may want to have separate applications such as binding financial agreements, consent orders and parenting plans in place if they are relevant to your situation. Some people may call it prenups but the legal term is actually binding financial agreements. As such, there is no difference between prenups and binding financial agreements in Australia. The cost of binding financial agreements is often well worth compared to lengthy legal battles.
For children under 18, particulars of the arrangements must be provided, including care arrangements, schooling, health, contact with parents and child support. A child custody lawyer is advisable to help guide you through the process so both parties can come to an agreeable decision in your child’s best interests. You may need a child support lawyer when the dispute is around payments. If there is an independent children’s lawyer involved in your matter, you will still need your own lawyer to guide you through your rights and obligations.
Depending on your situation, you may have to participate in dispute resolution or get court orders if both parties cannot agree. Most property and financial matters must start within 12 months from the date your divorce is finalised. Parenting orders for children under 18 years have no time limit. It is generally advisable to speak to a family lawyer if you need help with property, finances and child support.
What will divorce cost you?
The fees you pay for divorce will depend on your personal circumstances because you may need more than just a divorce order in place. There is a cost to apply for divorce on your own, but there are other associated fees that you will need to consider based on your own situation. For example, parenting orders, binding financial agreements, and more will have separate fees.
It’s in your best interests to come to an amicable solution with your ex before going to court, as court fees have a considerable cost per day and can end up putting you out of pocket by thousands of dollars.
For these reasons, it’s always ideal to consult with a divorce lawyer who can guide and help you arrive at the best possible outcome for you and your family.
How an experienced family lawyer can help
Arcadian Legal is a leading Hills District family lawyer who can negotiate and defend your rights to ensure your priorities are considered. All our discussions are 100% confidential, so you can rest assured you’re in a safe space with us. We can help you achieve the best possible outcome and will guide you through the most difficult situation with compassion.
