How to apply for a divorce
Divorce, or the termination of the legal marriage is a relatively straightforward process.
As we are blessed with a no-fault Family Law system, all a separated spouse needs to prove in order to obtain a divorce order is that they have been separated from the other spouse for at least 12 months.
This can be a little more difficult to prove if part of that period of separation has occurred under the one roof (“separation under the one roof”) as further evidence of separation will need to be provided.
Your ex-spouse will need to be personally served with your Application for Divorce and supporting documentation and, if you have children under 18 years of age, appearance at the divorce hearing is required, unless it is a joint application.
If you are legally represented, then your best divorce lawyers Melbourne appears at the divorce hearing on your behalf.
Some people choose to apply for the divorce themselves. If you prefer to leave the paperwork (and attending the divorce hearing) to a professional, we can take care of all aspects of applying for and obtaining a divorce for you.
When should I apply for a divorce?
Before applying for a divorce it is important to have finalise your property settlement with your ex-spouse. The reason for this is that under the Family Law Act 1975, a married person has a period of 12 months after the date of their divorce to file an application for property orders. Applications to the Family Law Courts after this time first need to obtain the court’s permission to file their application late. This can be expensive, particularly if you are not successful.
If you wish to remarry, you must be divorced from any previous spouse.
It is also a good idea to finalise your divorce because:
- Either you or your ex spouse have 12 months from the date of divorce (not separation) to apply to the Family Law Courts for a property settlement; and
- It may complicate the process for your intended beneficiaries to your estate to inherit your assets, particularly benefits held with your superannuation fund, if you are legally still married.
Under the Family Law Act 1975 parties to a marriage have up to 12 months from the date the divorce becomes final to bring an application to the Family Law Courts for a property settlement.
If you still need to sort out the division of your marital assets then it is recommended that finalise your property settlement before applying for a divorce. If you try to apply for property orders after that 12 months, you will first have to get the Court’s permission to file out of time.
Divorce is final one month and one day after the Court has granted the divorce order. The divorce order will need to have taken effect before you remarry.
You must be separated for at least 12 months before applying for divorce. You must provide proof of having separated for 12 months, with no longer than 3 months of re-connection breaking up the 12 months.
If the separated parties re-connect for more than 3 months they will need to restart the 12 months of separation again before applying for divorce.
Yes, they can. The Court only requires that the two parties prove that they led separate lives while living under the same roof. To decide whether separation has occurred, The Court will take the following into consideration:
- Whether you still sleep in the same bed;
- Whether you still maintain a sexual relationship;
- Whether you still share meals and domestic duties
- Whether you still share money and bank accounts
- Whether you have told your friends and family you have separated; and
- Whether you continue to introduce yourself as a couple.
In such cases where the separate parties are living in the same house, we recommend seeking legal advice before applying for divorce.
Yes, it does. The Court requires that separated couples attend counselling if they have been married for less than two years. You can, in limited circumstances, apply for an exemption from the requirement to attend counselling, including for example, where there has been domestic violence, or one of the parties has permanently moved overseas.
You do not have to get a divorce. The only time that divorce is necessary is if you plan to remarry. It is recommended that you speak with a lawyer to organise your financial matters, including a Family Law property settlement and making a new Wills and death benefit nominations with your superannuation fund, as there are certain rights and obligations involved in remaining married.
You must be separated for at least 12 months before applying for divorce. You cannot remarry without being divorced from a prior spouse.
While it is recommended, it is not a legal requirement.
If you have children under the age of 18 then you must attend the divorce hearing. If you have a lawyer representing you then your lawyer will attend the divorce hearing for you.
Yes as long as either you or your ex-spouse:
(a) regard Australia as your home and intend to live in Australia indefinitely;
(b) Are an Australian citizen;
(c) Ordinarily live in Australia and have done so for at least 12 months prior to filing your application for divorce.
If your ex-partner’s divorce application has errors, you can file a Response correcting those errors.
In general, if the Court is satisfied that there has been a period of separation of at least 12 months then the Court will grant the divorce. Your consent to the divorce is not required; all you might be able to do is delay when the Order will be made.
It is necessary for your divorce application to be served personally upon your ex-spouse.
If you cannot locate your ex-spouse or they are dodging service then you can apply to the court for:
- Substituted service. This means that the court will let you serve your ex-partner by some other method, including through one of their family members, through Facebook or email; or
- Dispensation of service. This is where the Court allows you to proceed with your divorce application even if you have not been able to serve your ex-spouse with your divorce application.
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