20 Jul I want to get divorced. Now what?
The number of divorces granted in Australia has been increasing yearly. Given the increasing statistics, it seems timely to consider the most important and frequently asked questions surrounding the divorce process.
1. How do I apply for divorce?
An application for a divorce is made at the Federal Circuit Court of Australia. The application can be made by either the husband or the wife, or jointly. You can download the application from the court website. You do not need to use a lawyer, however a divorce lawyer will make the process easier.
Once the application has been filled out, it is filed at the court with the filing fee of $845. A hearing date is allocated and, if the application is successful, you will be provided with a court order proving your divorce.
2. What do I need to prove to get divorced?
There is a no-fault divorce principle in Australia. What this means is that the court does not consider why the marriage ended.
The only ground for a divorce is that the marriage has broken down irretrievably. You will need to show that you have been separated for at least 12 months.
In addition, if you have not been married for at least two years, at the time you make your application, you must attend counselling and get a certificate confirming that you have attended.
3. What if my spouse and I have remained living together since our separation?
You can still file a divorce application if you and your spouse have continued to live together since your separation. You will just need to prove to the court that you were actually separated during this time.
To prove separation in a joint application, you and your spouse will need to each prepare an affidavit that provides information about how you have been separated while living under the one roof. If you are filing a sole application, you will still need to prepare an affidavit proving separation, and you will need to adivorcesk another person to prepare an affidavit containing as much information as possible to prove the separation of you and your spouse.
Things that will go towards proving separation in this situation could include:
- Living in separate bedrooms
- Operating individual bank accounts
- Not sharing familial meals
- The ceasing of sexual activity
- Not sharing household responsibilities such as washing
4. What if I want to oppose the divorce?
There are very limited grounds on which to oppose a divorce in Australia. Some of the grounds include that there has not been a 12 month separation, that the marriage was not valid, or the court does not have jurisdiction.
If you oppose the divorce a response should be filed within 28 days of receiving the divorce application. You and the filing party will be required to appear in person at the court on the hearing date. You should seek advice from a family or divorce lawyer before opposing a divorce.
5. Do I need to attend the hearing?
You do not need to attend the divorce hearing at the Court if both parties agree to the divorce. You simply note this on the divorce application and you will subsequently be sent a copy of the final divorce orders about six weeks after the hearing date.
If your divorce is not agreed to by both parties then you will need to appear at the hearing, as well as the other party. You should seek advice from a family or divorce lawyer if that is the case.
6. Accounting for Children
The filing and granting of a divorce application does not have any bearing on issues surrounding children. The Court will not grant a divorce where there are children under the age of 18 unless they are satisfied that proper arrangements have been made for them. You will need to state the arrangements on your application.
7. Division of Property
Agreements about the division of property must be made separately to the divorce process. A property division can involve the filing of a mutual agreement (consent orders) at the Court. Where a mutual agreement cannot be reached, either one of the parties can file an application at the court seeking property orders.
Property proceedings are complex, you should seek advice from a family or divorce lawyer before filing or responding to an application for property orders.
Note: An agreement or an application seeking orders about property must be filed within 12 months of the day on which the divorce becomes final.
8. Changing your name
You can revert back to your maiden name at any stage in the separation or divorce process. If you wish to change your children’s names, this process is more complicated and it is recommended that you consult with a family lawyer about this.
9. Does my divorce affect my will or other important documents?
Yes, a divorce revokes a disposition made to your former spouse in a will that was drafted prior to the divorce. It is very important to seek advice about the drafting of a new will following your divorce or immediately after separation and prior to your divorce.
It is also very important to change any joint bank accounts, superannuation death benefit nominations, and life insurance policies following a divorce.