In Australia, if you are presently married and have separated from your spouse for a period of 12 months, either of you are eligible to apply for a divorce. You can apply for a divorce together, but also separately if you wish to do so. There are a lot of resources online to assist people in applying for a divorce, however you can also speak to a family lawyer to assist you in making an application.
The first thing to do after being handed a copy of the divorce application is to check that all the information included in the application is correct and that you have been served with all the necessary documents. It is likely that your spouse is listed as the Applicant and you as the Respondent.
You should have received the following documents:
- The Application for Divorce;
- A Brochure titled Marriage, Families and Separation;
- A blank Acknowledgement of Service form; and
- An Affidavit for eFiling.
If you haven’t already, you should sign the Acknowledgement of Service form you were provided and return this to the person who served you, or your former spouse.
You will notice on the very first page of the Application that there should be a Court date, location and time. On that date, a Registrar at the Court will review the Application for Divorce. You are not generally required to attend the Court event. If you do not agree with the Application, you can file a Response, object to the Application being made, or attend the Court event to correct an error you have found in the Application. You must attend the Court event if you object to the Application being made.
In Australia, there are very few elements that a Court needs to be satisfied of before they will grant a divorce order; the main ones being:
- That both parties are married;
- That you have been married for at least 2 years;
- That your relationship has broken down irretrievably; and
- That you have been separated from one another for at least 12 months.
At that Court event, if there are no issues with the Application and you were served with the Application within the required timeframe, the Registrar will make the divorce order. The Order then comes into effect one month and one day after the Order is made. Once the Order has been made, you can obtain a copy of the Order from the Federal Circuit and Family Court of Australia via their online portal – the commonwealth courts portal.
What Next?
There are some important implications that a divorce has for you.
A divorce Order severs your legal relationship with your former spouse, but not your financial relationship. If you have assets, resources or liabilities that are held in joint names, or in either of your names that you think you may have an interest in, you may wish to seek legal advice about your entitlement to a property settlement. Importantly, parties to a marriage have one year in which to file an Application for a property settlement from the date of their Divorce.
If you have children with your former spouse, you may also wish to formalise any agreement you have reached with them about the care of your children. If you have not reached any agreement, you may need to seek legal advice about what arrangements should and could be in place for your children’s care.
Written by
Sophie Wilson
Family Law Solicitor
It is also important to speak to a family lawyer first. We have experienced solicitors in Newcastle and the Central Coast area that can help you through your family law matter.
We offer a fixed fee initial consultation from $330. Simply Contact one of our friendly staff members to make an appointment.
