Navigating the divorce process can feel overwhelming, but understanding each step can make the journey smoother and less stressful.
Whether you’re initiating a sole application or filing jointly with your spouse, it’s essential to know your rights and responsibilities, along with the legal requirements
Our aim at TAFT lawyers in Dandenong and Melbourne is to empower you with the information needed to make informed decisions and ensure you are well-prepared for each stage of this significant life transition.
This comprehensive, step-by-step guide outlines the key stages of getting a divorce in Australia, from eligibility and separation rules to filing your application and finalizing the divorce order:
Step-by-Step Guide to the Divorce Process
- Eligibility
- Separation Requirements
- Filing the application
- Serving the Application
- Court Hearing
- Granting of Divorce
- Post-Divorce Considerations
Eligibility
Before applying for a divorce, you must ensure you meet specific eligibility criteria. Either you or your spouse must be an Australian citizen, live in Australia, or regard Australia as your permanent home. Additionally, you must have been separated for at least 12 months. The court needs to be satisfied that there is no reasonable chance of reconciliation.
Separation Requirements
Separation can occur even if you and your spouse are still living under the same roof. This situation is referred to as “separation under one roof.” If you apply for divorce under this condition, you must provide additional evidence, such as affidavits, to prove the separation. Additionally, if you have been married for less than two years, you must attend counseling and provide a certificate from a counselor or obtain the court’s permission to apply.
Filing the Application
To start the divorce process, you or your spouse (or both together as a joint application) must file an application for divorce online via the Commonwealth Courts Portal. The application must include relevant details, such as information about the marriage, separation, and any children under 18. A filing fee applies, though fee reductions are available in cases of financial hardship.
Serving the Application
If you file a sole application (meaning you apply without your spouse), you must serve the divorce papers on your spouse at least 28 days before the court hearing (or 42 days if they are overseas). Service can be done personally by a third party or through the mail, and you will need to provide evidence of service to the court. If your spouse’s whereabouts are unknown, you may apply for substituted service or dispensation of service.
Court Hearing
In some cases, a court hearing may be required, especially if there are children under 18. If you have filed a joint application and there are no complications, attendance at the hearing is generally not required. However, if it is a sole application and there are children under 18, you may need to attend to address any queries the court may have. The court will ensure that proper arrangements are in place for the care, welfare, and development of the children.
Granting of Divorce
If the court is satisfied that all conditions have been met, it will grant a divorce order, which becomes final one month and one day after the hearing. You will then receive a divorce certificate as proof of the legal end of your marriage. It is advisable to keep this document safe, as it may be required for future purposes, such as remarriage or financial matters.
Post-Divorce Considerations
Once the divorce is final, issues like property settlement, spousal maintenance, and arrangements for children need to be handled separately. You have a 12-month window from the date the divorce order becomes final to file for property or spousal maintenance orders if needed. If these matters are not resolved within this time frame, you may need the court’s permission to proceed with your claims.
This structured approach ensures that the divorce process in Australia is systematic, balancing the legal dissolution of the marriage with the well-being of any children and the fair resolution of financial matters.
