In 2014, there were 46,498 Divorces in Australia, with the Divorce rate being 2 per 1000 estimated residential population. In that year the median length of a marriage was 12 years.

The Divorce Process

  • Divorce is the formal ending of a marriage.
  • A Divorce Application is usually issued in the Federal Circuit Court of Australia, although the Family Court can also but rarely grant divorces.
  • A Divorce Application is quite separate from issues about children or financial matters such as spouse maintenance or property.

Even where there are issues about children and property and Divorce, the Divorce is still processed as a separate Application.

For some parties, Children’s Orders  and Property Settlement  matters are the priority and these can be dealt with immediately a marriage breaks down, and ahead of any Divorce Application.

Time Limits

  • The only “clock-ticking” factor is that once the Divorce comes through, a party only has one year from then to issue property proceedings. Thereafter such proceedings can only be taken to Court with the Court’s leave (permission).

No Fault

  • Australia has a no-fault divorce system. That means a party’s behaviour is not relevant.

12 Month Separation

  • For a Divorce to be granted, the Australian Court has to be satisfied that:
    • The parties were married; and
    • The Husband and Wife have been separated for a period of not less than 12 months; and
    • There is no reasonable prospect of cohabitation resuming; and
    • The other party has been served with Divorce papers.

Separation Under The Same Roof

  • Spouses may still apply for a Divorce if they have continued to live under the one roof but lived separate lives. However, additional information needs to be given to the Court in Affidavits, before such an application can be considered by the Court. This can sometimes be difficult to obtain.

Counselling

  • If the marriage has been for less than 2 years, the Court requires the Husband and Wife to take part in a counselling session before the Divorce Application can be considered by the Court.

Children

  • Applicants who have children under 18 need to detail arrangements for the children in the Application. The Court may refuse the Application if it is not satisfied that proper arrangements have been made for the children of the marriage. Unless the Application is made jointly by both parties, the Applicant should also attend Court in person on the date of the Divorce hearing, in case the Court has questions about the children.

Service

  • Where the Application is made only by one party, then the Application requires to be served on the other party and there are certain rules about service and the provision of Affidavits of Service which require it to be filed with the Court.

We encourage our clients to do their own Divorce Applications, particularly if the Application is joint and there are no difficulties about children. There are “Kits” are downloadable from the Family Court website. However, many people prefer their lawyer to do the Divorce for a wide variety of reasons.

Our family lawyers at Pearce Webster Dugdales are happy to talk through the Divorce process with clients to make sure Applications are on the right track.

Please do not hesitate to contact our Family Law Department at Pearce Webster Dugdales if we can help with your Divorce Application or assist with the complexities which Children’s Orders and Property Settlement issues throw up, at the end of a marriage.