Divorce

You can obtain a divorce once you have been separated for 12 months. You do not need to wait until you are divorced before you finalise your property settlement and deal with your assets.

Australia has operated under a “no fault” system of divorce since the introduction of the Family Law Act in 1975.

It is important to remember that obtaining a divorce does not deal with your assets or property, child support, spousal maintenance, or arrangements for children or parenting.

The good news for those wishing to file a divorce application is that if your divorce is very simple then you may be able to do it yourself without a lawyer.

What is required for a divorce application in Melbourne and Australia?

1. You will need a valid marriage. You prove this by filing your marriage certificate along with the application for divorce. If you were married abroad then you will also need to track down an English translated and certified copy. Usually you will be able to call the embassy of the country you married in to help with this process.

2. Next you will need to prove that the Federal Circuit Court of Australia has jurisdiction to grant your divorce. If you’re an Australian citizen then this is an easy process, but jurisdiction can also be acquired by proving:

a) That you regard Australia as your home and intend to live in Australia indefinitely; or

b) That you ordinarily live in Australia and that you have lived here for 12 months prior to making the application for divorce.

3. Third, you need to show that your marriage has irretrievably broken down. This step is straight-forward and will be satisfied by having lived “separately and apart” for at least twelve months prior to making the divorce application.

4. Finally, if you have children under the age of 18 then you will need to show the Court that you have appropriate care arrangements in place. If you have existing parenting orders, then this is usually quite easy. If you do not have parenting orders in place for your children, then you will need to tell the Court what the arrangements are – including where the children live, whether any child support is being paid – and provide details of the children’s school and health.

I can show all the necessary steps. What next?

  • Once you file your divorce application, you will need to prove that you have served it on your former spouse. You will need to do this at least 28 days before the divorce hearing – or 42 days before the hearing if your partner has moved overseas. Anyone over the age of 18 can serve your spouse, but usually it is best to employ the services of a professional process server. The process server can ensure the documents are served correctly and provide you with an Affidavit to file with the Court proving service.
  • Once you have served your partner you are almost there! If you have children under the age of 18 then you will need to attend the hearing or send a lawyer to the hearing on your behalf. You will receive a notification from the Court with the time and date that the hearing will be held.

The finish line

  • Once the hearing is held, the Court will grant you an order, also known as a decree nisi, which means that your divorce will become official and final in one month and one day. In one month and one day your decree nisi becomes a decree absolute and you can pop a bottle of champagne because your divorce is now final.

Don’t forget!

  • Once your divorce is final you must deal with your assets and property settlement within 12 months. If you don’t then you may find yourself out of time and unable to make an application to the Court without first obtaining leave – a fancy term meaning permission – from a judge. It is best to avoid this process as it adds undue stress and expense.
  • If you get stuck making a divorce application, or you prefer not to deal with the stress and hassle of processing your own divorce, then call our experienced Family Lawyers at DCM Lawyers. Whether you just need assistance completing the documents, or just need help with the court hearing – we’ll make sure you have everything in order to move through the process as smooth as possible.