In order to obtain a divorce, you will need to show to the Court that:
- the marriage has broken down irretrievably;
- You have been separated for a period of 12 months (even if you have continued living together); and
- where there are children of the marriage who are under 18 years of age, that there are arrangements in place for the care and welfare of the children.
What if I have been still living with my partner after we separated?
It is not uncommon for parties to remain living together for some time after the relationship has ended. Sometimes finances and care arrangements for the children mean it is easier to remain under the same roof until matters can be sorted out.
The Court will be satisfied that you have been separated provided you can show two things:
- that there was an intention to end the marriage; and
- that the intention to end the marriage was expressed to the other person.
An intention to end the marriage, can be shown by a range of actions, such as no longer having sexual relations, or no longer cooking and performing chores for one another, or no longer sharing finances.
If you have been living under the same roof for the last 12 months (or part of the last 12 months), you will need to supply an affidavit in support of your divorce application, which sets out how you have been living separate lives.
You will also need to provide an affidavit from a witness confirming that you have been separated for a period of at least 12 months. This could be a neighbour, a family friend, a friend or a relative.
What arrangements do I need to show for the children, and will I need to attend a Divorce Hearing?
A divorce will not be granted if there are children of the marriage, under the age of 18, unless appropriate arrangements have been made for the care of the children. These arrangements do not need to be put into writing by way of a parenting plan or consent orders. They can simply be agreed between you and your spouse.
The divorce application form requires you to state what arrangements have been made for the Children. If you wish to formalise arrangements for care of the Children, you can do so through either a parenting plan or consent orders, however, there is no requirement to do so in order to obtain a divorce.
If the application for a divorce is a joint application by you and your spouse, there will be no need for you and/or your spouse to attend the Hearing. However, if the application is a sole application, you will need to attend Court in order to verbally state that the application was served on your spouse and advise the Court of the arrangements in place for the Children.
How long does it take to get divorced and is it expensive?
The length of time it takes to get divorced will depend on your personal circumstances.
If the application for divorce is a joint application, you and your spouse will submit the application and necessary affidavits and you will be given a ‘hearing date’. In the case of a joint application there is no need for you or your spouse to attend Court and the Registrar will consider the application in chambers. Once the Registrar has decided to grant the application you will be formally divorced one month and one day from the date of hearing.
If you are making a sole application the process may be longer as you will need to serve the application on your spouse. If your spouse is in Australia, you will have to serve the application on your spouse at least 28 days before the hearing. If you spouse is overseas you must serve the application on your spouse 42 days before the hearing. If there are children under the age of 18 years you will need to attend the hearing and the divorce will be formally granted one month and one day after the hearing.
The filing fee for divorce changes from time to time and fees can be found on the Family Court of Australia website. You may be able to make an application for a reduction of these fees on the basis of hardship.
There are a lot of firms out there that can advise you on your options in a divorce/separation, so what makes us different from the rest?
- Our family lawyers pride themselves on their ethics and our compassion, we will tell you upfront your best options moving forward even if this means that you do not need a solicitor;
- Our family lawyers understand that clients do not have unlimited access to funds and legal fees and court fees can be expensive, for that reason we offer payment plans and a high degree of compassion in relation to fees.
- We understand that you don’t want to have to repeat yourself over and over, and for that reason you’ll be appointed the same family solicitor that will assist you from start to finish.
- We understand that you also need to work and have other commitments and for that reason our family solicitors are happy to conduct appointments on the weekends or after hours.
- We practice in a number of areas and can offer you expert advice on other matters ancillary to your separation, such as making or changing a Will, Enduring Powers of Attorney and Enduring Powers of Guardianship, purchasing or selling a property, even obtaining an AVO or defending one.