Filing Your Divorce in Australia: A Complete Guide
In Australia, divorce is no-fault based. This means that you do not have to prove that your ex-partner has committed any fault before making a divorce application.
If you and your ex-partner both want to obtain a divorce, you can make a joint divorce application using one law firm. If you and your ex-partner do not agree on the divorce, one party can make a sole divorce application.
There are few things you need to be aware of before making your divorce application, including having arrangements for the welfare of your children and planning the division of property. This guide will provide you with an overview of your rights, entitlements, and obligations before making a divorce application.
Key Takeaways!
- Divorce in Australia is no-fault based.
- You can obtain a divorce in Australia even if you are married overseas.
- You can get your divorce finalized online without going to court.
- It is mandatory to have a satisfactory care arrangement for children under 18 prior to applying for a divorce.
What Are The Requirements For A Divorce?
- One spouse must be an ordinary citizen of Australia for at least 12 months
- Partners have been separated for 12 months. Separation under one roof is acceptable.
- Care arrangements for any children under 18 must be finalized
How to make your divorce application?
In Australia, all divorce matters are handled in the Federal Circuit and Family Court of Australia. Parties are required to file their divorce application online with the necessary supporting documents to “Commonwealth Courts Portal” which is an online platform.
Despite the simple process, there are a range of complexities to consider. You need to be highly aware of providing correct information for the following:
- Correct spelling of names (i.e exact spelling on identity documents)
- Submitting complete care arrangements for children under 18
- Providing information of any property agreements
- Disclosing the existence of any family violence within the marriage
It is always advisable to obtain the guidance and assistance of a family lawyer when making your divorce application to avoid any errors.
How do you prepare a parenting plan and property agreement?
Once your divorce has been finalized, you have one year after the date of divorce to resolve your property and parenting disputes.
In Australia, property settlements and parenting issues are considered separately from divorce. This means that you can negotiate or file an initiating application in court for property settlement or a parenting order at any stage of your separation; even before finalizing your divorce.
Parties can negotiate and enter into a mutual agreement in relation to property and parenting disputes. Such mutual agreements can help avoid a costly and a cumbersome litigation process. These agreements can include:
- Binding Financial Agreements
- Consent Orders
- Binding Child Support Agreements
Related Article: What is Property Settlement? And How Does the Law Apply in Victoria?
What if my ex-partner does not agree?
Joint Divorce
- Both you and your ex-partner can agree make a joint divorce application together.
- You may agree between yourselves to use one law firm to file your divorce application.
- Joint applications are less costly and will take considerably less time if you do not have any children under 18.
Sole Divorce
- If there is a conflict between you and your ex-partner in obtaining the divorce, you can go ahead with a sole divorce application.
- Sole divorce application requires parties to serve the divorce papers on the ex-partner.
- Parties need to attend the divorce hearing at court when a sole divorce application is filed.
Going to court to finalize your divorce
If you make either a joint or sole divorce application and you do not have children under 18, you are not required to attend court in person. However, if you have children under 18 within your relationship, you need to attend the divorce hearing.
This is for the court to review and consider the care arrangements for your children.
The court would only grant the divorce if the judges are satisfied that if the care arrangements are in the best interest of the children.
Responding to divorce. Can you disagree?
Yes, you can oppose a divorce application, but only if:
- there has not been a 12-month separation as mentioned in the application; or
- you allege that the court does not have legal power or authority to grant the divorce.
However, if you still want the divorce to be granted but you do not agree with the contents of the divorce application made, you can file a Response to Divorce stating which facts you disagree with.
If you disagree to the divorce, you are required to attend the divorce hearing in person.
How can MJ Legal assist you?
We can help you through the whole divorce application process, including:
- Negotiating with your spouse on care arrangements for your children.
- Assisting you in all the required documents before making your divorce application.
- Assisting in making your divorce application.
- Referring you to professional support for your emotional wellbeing during this process if requested.
- Guiding and updating you through your entire divorce process.
- Advising you to resolve your property disputes.
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