How do I apply for a Divorce?
We have a no-fault divorce system here in Australia. This means that you can apply for a divorce without concern the other party might not give their consent. The only requirement that needs to be met in order to apply for a divorce is that the marriage has broken down irretrievably.
Before you apply for a divorce you are required to have been separated for at least 12 months and 1 day and one of you needs to be an Australian Citizen or be living in Australia and regard Australia as home.
There is no need to have had attempted counselling in order to apply for a divorce unless you have been married for less than 2 years in which case you will have to participate in some counselling to discuss possible reconciliation and obtain a counselling certificate.
Like many families with children, people often choose to remain living under the one roof until they decide it is no longer possible. This does not affect the time you need to be separated in order to apply for a divorce, as long as you are living separate lives, however you may be asked to prove this.
If there are children of the marriage under the age of 18 the Court cannot grant a divorce unless it is satisfied that proper arrangements have been made for the children. A lawyer can help you with this.
You can apply for a divorce on your own, as a sole applicant, or you can apply together as joint applicants. If you are applying as a sole applicant, you will need to serve a copy of the divorce application on your ex-partner. This can be done by hand, by post or by engaging a process server. Service must be effected at least 28 days before the court hearing if they reside in Australia or 42 days if they are overseas.
One of the most common questions we get asked is “Do I need to go to court?” The short answer is no, unless you want to attend. If you are a sole applicant and there are no children under the age of 18 then you are not required to attend court. You are only required to attend the hearing if there are any children under the age of 18 and you are applying as a sole applicant.
Your divorce will become final 1 month and 1 day after the hearing and you can obtain a copy of your divorce papers through the Commonwealth Courts Portal at no charge or you can email [email protected] and request a copy for a small fee.
If you require advice or assistance with your divorce contact the team at Miller Sockhill Lawyers on 07 5444 4750 and one of our friendly team members can answer any questions you might have.