How to apply for a divorce in Australia?
In this article, we are going to show you how to apply and get a divorce in Australia. Importantly we will show you how to file for divorce with eleven simple steps that make it easy and pain-free.
The separation and divorce processes can be emotionally and financially challenging. Failing to prepare and educate yourself may result in prolonging the process, increasing financial costs. What this will do is add extra stress and personal conflict to the already strained situation. Underestimating how intertwined long-term relationships are with children and valuable assets, can at times be difficult.
Deciding to terminate a marriage certificate and apply for an official divorce application can significantly reduce the overall discomfort of being in a toxic relationship. When you, your spouse, or your long-term partner decide to divorce it’s important you communicate effectively.
Are you in a crisis?
When you think about it, getting a divorce is one of the most contentious and stressful events you will ever likely go through. Yet, with a simple change in mindset, nearly any couple can arrive at a mutual resolution that makes everyone happy. In saying that, we understand some relationships result in divorce from domestic violence, and if this is the case for you and you are in immediate danger, we ask that you seek immediate help by calling the police on 000. Visit this page for a list of additional helplines Whiteribbon Australia. If not in immediate danger contact our office for further legal advice.
Whether married or in a long-term relationship, learning how to get a divorce can be difficult and emotionally draining. If you’re like most people, you want to avoid a divorce. But even if you aren’t, you want to make sure your marriage (or whatever other relationship you are in) ends as smoothly and easily as possible. This is especially true if you have children involved and a multitude of assets to split. Confused or concerned reach out and get legal advice.
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In 2020 there were 78,989 marriages which was a 30% decrease from 2019. The divorce rate remained at 1.9 per 1,000 people or 41, 573 marriages ended in divorce in 2020. While couples divorcing may choose to prepare and file their applications at court, many still require the assistance and advice of a family divorce lawyer as they require legal advice.
You might ask the question how to get a divorce in Australia? You are a married or de-facto couple considering a divorce you will be defined by the Family Law Act 1975 (Cth) (“the Act”) which deals with Australian divorce applications.
There are three factors couples need to consider in preparation for the dissolution of their marriage, namely:
- Having a clear understanding of your circumstances—will significantly influence the outcome.
- Making sure you know everything you need to know about your divorce case—knowledge is power.
- Being clear about the legal process – and saving money, time, and stress.
Please reach out if you are based on the Sunshine Coast or Brisbane and would like legal advice. Although we can help most people with divorce across Queensland. We can provide an online divorce application for sole applications or a joint application where there is no need to visit our office. Get legal advice and be in control.
Separation under one roof
Section 49(2. of the Family Law Act 1975 makes it clear that parties can live under one roof:
“The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other”.
There may be some practical problems associated with parties living under one roof; for example, in establishing that separation has occurred or when it commenced. You may be required to provide further evidence if the court is wary of parties submitting false claims of separation. It would be prudent for the parties at the very least to sleep in separate rooms and to keep to a minimum the rendering of household services to each other.
A lot of practical problems could arise when couples decide to continue to live under the same roof when in the process of divorce. The Courts will want to establish if the parties have separated or when the separation date occurred. split up or if they are living in separate rooms and keeping to a minimum the rendering of household services to each other. It would be prudent for the parties to sleep in separate rooms, to keep to a minimum the rendering of household services to each other, and to document such separations properly. It’s important to ensure there is no deception in their claims of separation.
The applicant and respondent will each need to file an affidavit with the court when the parties are living in the same home for the entire 12 months. This will provide the court with information about the separation. The courts may only require a sole applicant to file one affidavit.
To determine your sole or joint application for divorce as being genuine, the courts require the following:
Living under the same room Arrangements
- What are your new sleeping arrangements, are you sleeping in a different bedroom?
- Do the parties continue to perform domestic services for the other?
- You have sole bank accounts setup?
- Is there less social interaction and arrangements of activities?
- How and when did the parties inform their kids (if any), family and friends?
Why do the Parties continue to live together?
- Why have the parties decided to continue to live under the same roof?
- Do kids under the age of 18 have special arrangements?
- Have you notified government departments like Child Support and Centrelink?
- Do you envisage a change in housing arrangements? If so, what will those changes be and when will they take effect?
How to Get a Divorce In Australia?
If you’re in a difficult marriage or relationship, chances are that you’ve been longing for a way out. But, how do you find that magic solution that will make your situation easier and less painful? Isn’t that what we all want? An amicable divorce with assets split equally? Unfortunately, this isn’t the case and many couples head down the destructive, spiteful path of trying to get revenge on their ex-partners. When it gets to this stage, one party will usually have had enough and just want out.
When it gets to this stage, you might ask, “Do I need consent from my partner to apply for a divorce?” The short and simple answer is no. One spouse or jointly can initiate divorce. If you choose to file for divorce on your own, you will have to ensure that all documents are provided to your ex-spouse by a third party over 18 years of age. The Court must be satisfied that your ex-spouse has been served before a divorce can be granted.
Simple Divorce Checklist
You do need to meet certain criteria to be eligible for divorce. Our simple checklist below allows you to determine whether you are eligible:
- Are you or your ex-spouse an Australian citizen or regard Australia as your home within which you intend to indefinitely reside or live in and have done so for 12 months before filing for a divorce in Australia?
- You have been married for at least 2 years? If it has been less than 2 years, have you attended marriage counselling and received a certificate?
- Have you been separated for at least one year? You do not need to have moved out of the family home.
- Has the marriage broken down without there being a chance of reconciliation?
- If you have children, have suitable arrangements been made for any children under 18? The arrangements do not need to be documented in Court Orders.
If you have answered “Yes” to each of the questions listed above, then you can successfully apply.
Once your divorce application has been granted, it will come into effect 1 month and 1 day after the date of the order. You may only remarry after this date.
It is important to remember that in divorce, a no-fault principle applies, which means the Court will not ask why the marriage has ended. Further, a divorce application does not consider any property adjustments or parenting disputes. Should you require assistance to apply for a divorce or with resolving your property and/or parenting matters, contact Shanahan Family Law for your free initial 20-minute consultation.
11 Steps to a Divorce that is Easy and Pain-Free
You might ask yourself what is the first thing to do for a divorce? If you follow our steps below you’ll be doing better than most divorcees do. Most couples in the middle of separation have no idea where to begin. They’re feeling confused and overwhelmed, and it’s taking up all their time and energy. In addition, many don’t know what to expect from the process itself. So, what should they do? They need to make a plan for their financial future, they need to be prepared for the emotional toll of the divorce, and most importantly, they need to start somewhere. Follow these 9 simple steps to make the process run smoothly and pain-free for you:
#1 Family Lawyer.
We strongly advise consulting with a Sunshine Coast family law expert who specialises in divorce applications online or in person. Shanahan Family Law experts do both and can help you apply for a divorce.
#2 Prepare yourself mentally.
It is very important that you stay focused and be in control of your emotions. Read our article here where we talk about taking the emotion out of this difficult time.
#3 Don’t be in a Hurry.
Divorce is a long process and, in some cases, can take years. As they say, “patience is a virtue.”
#4 Legal Costs.
If you cannot afford a family lawyer, contact Shanahan Family Law and we will assess whether you are eligible for Legal Aid.
#5 Separation and living arrangements.
If your relationship is at breaking point and you both cannot communicate, then consider hiring a mediator who will support you in this process. Shanahan Family Law can point you in the right direction. Start negotiations if both partners can openly communicate. The separating couple needs to prepare children and other dependents for separation by considering who is going to live where and with whom. The number of variations can include everything from families living together without the parents being a couple to a complete fracturing of the family unit supported by a written agreement that establishes everyone’s living and visiting arrangements in advance.
Consider the following:
- A divorce decree requires that the separating couple have been separated and not have lived as a married couple for twelve months or more. This does not mean they need to live at separate addresses to declare that they are separated for the purposes of the Act.
- minimum accommodation standard is required to provide a stable, healthy environment for all, and work toward that goal.
- Determine the best outcome for everyone, considering the level of animosity and discord in the home and whether the parties’ financial situation will allow for two residences. This may mean one party having to relocate immediately or for the family to continue living together.
#6 Divorce and children in Australia.
It goes without saying that children’s needs, regardless of whether they were conceived jointly or are children from previous relationships, are dependent on the relationship and are the most critical of all considerations when you prepare for separation. Consider the following points carefully:
Consider the following points carefully:
- Courts tend to deal harshly with people who put their own interests ahead of their children, as children are dependent on both parents for physical and emotional security. It is therefore essential and crucial that children are always, as much as possible, protected from the ill feelings generated by separation. Ensure that both parents put their personal differences aside when dealing with their children.
- The Court will not allow one parent to refuse access to the other unless there is a danger to the children from domestic violence. It is a child’s right to have access to those they love and those who care for them, including grandparents and other family members. A couple who have physically separated must as soon as possible establish a regular arrangement to access the children. This agreement does not need to be initially formalised but does need to serve the best interests of the children. Resisting access to a former spouse usually results in the separation process becoming increasingly more difficult and costly.
#7 Divorce Documentation
Life depends on documentation, and it is essential to prepare a portfolio of all the relevant documents that are required to support your decision to separate. Gather and prepare these as early as possible, and especially as soon as one spouse exerts commanding control over the family or has the intention of derailing the separation process by refusing to cooperate or provide information. These documents include:
- Passports, the marriage certificate; any Wills or other post-mortem instructions; naturalisation and/or change-of-name papers; driver’s licenses, Medicare cards, and other personal identification documents; bank books and statements; lease documents for the primary residence; and any mortgage documents or Certificates of Title to the primary residence or any other real assets; lease documents for any investment properties with tenants; and copies of any prenuptial agreement.
- Where possible, photocopies need to be provided if original documents are not available.
#8 Finance and Divorce.
Finances usually become one of the most divisive and contentious matters as the potential separation may place a significant burden on their joint and separate finances (assets and property settlement) which neither party is prepared to accept. Separating couples should consider, address, and resolve the following financial matters:
- If the family finances are dire, get immediate financial advice and don’t face financial hardship.
- Draw up a budget to estimate whether you can afford to live separately, care for the children, and pay the bills.
- Close joint accounts, credit cards, or other debt channels to prevent future arguments about who spent what.
- Get a comprehensive audit done of all joint and separate finances, with the details recorded in writing, as the Court will use this information to assist with the settlement process.
- Draw up a detailed list of all major assets, including an estimated or real valuation. This includes cash revenue from investment properties, stocks, or other assets, including superannuation holdings by both parents.
Separating couples should endeavour to keep their lines of communication with each other as open as possible.
- Agree and manage what information you share with others.
- Do not discuss details of your separation, especially anything of a sexual or financial nature, in the public domain or on social media, as these will be scrutinised by the Court as deemed necessary and may have a negative effect on the divorce settlement.
- Never make accusations or defamatory statements about your former spouse.
- Avoid bad-mouthing the other spouse to your children – even if you are being abused and criticised.
#10 Don’t DIY.
There are cases where partners have done this. Assets and cash have passed from one partner to the other. Then, 12 months later, that same partner takes another bite at the cherry and takes the other party to court and is awarded another settlement, leaving the other party at a huge loss in their overall assets.
#11 Celebrate your Divorce Outcome
If you have come to an agreement, go ahead and celebrate. Our clients at Shanahan Family Law do this because the process works out according to their needs.
While these steps might appear simple, there are plenty more pitfalls when it comes to finalising a separation. At Shanahan Family Law on the Sunshine Coast, we can assist you to avoid those pitfalls by complying with service time limits, drafting affidavits explaining name changes, responding to a divorce application, filing a sole application and, if required, attending on your behalf at the hearing.
Once granted, it will come into effect 1 month and 1 day after the date of the order. You may only remarry after this date.
It is important to remember that in Australia, a no-fault principle applies, which means the Court will not ask why the marriage has ended. Further, a divorce does not consider any property adjustments or parenting disputes. Should you require assistance with a separation or with resolving your property and/or parenting matters, contact Shanahan Family Law for your free initial 20-minute consultation, or book a meeting here.
How to get a divorce without going to court?
In Australia, there is an option for an uncontested divorce. If the parties apply jointly for divorce, you’re often granted an uncontested divorce within a short period. The respondent to a sole application for divorce readily signs their required paperwork, the uncontested divorce is also often granted within a short period.
If not in agreeance to a divorce, proceedings can take 6 months or in most cases years which is referred to as a contested divorce. Call our office if you have any questions about an uncontested divorce or require legal advice on another matter or joint application for divorce.
Family Court Divorce Hearing
If you’re experiencing a contested divorce in Australia requiring support with a sole application or joint application and required to attend a hearing in court visit here or see list of main courts below:
Maroochydore Circuit Court
Cornmeal Parade PO Box 732 Maroochydore, Sunshine Coast Qld 4558. Phone: 1300 352 000.
Brisbane Family Court
Harry Gibbs Commonwealth Law Courts, N Quay & Tank Street, Brisbane City QLD 4000, Australia. Phone: 1300 720 980.
Sydney Family Court
97-99 Goulburn St, Haymarket NSW 2000, Australia. Phone: 1300 352 000.
Melbourne Family Court
305 William St, Melbourne VIC 3000, Australia. Phone: 1300 352 000.
Conclusion on how to get a Divorce
By educating and preparing yourself on the above eleven steps for considerations before you get divorced, you will help mitigate many of the problems and minimise the cost and harm associated with obtaining consent orders and a property settlement. Ensure you are represented by a law firm that truly cares about your situation and that you fully understand your legal position so as to experience fewer complications as the process unfolds.
Shanahan Family Law recognises that break-ups are tough, both emotionally and financially. We exist to assist and support you every step of the way, whether that be applying for a divorce online or in our office. As the best Sunshine Coast Family Lawyers,
- we care: Working with our team of experts will give you a clear plan to see the light and feel confident moving forward with your life.
- We Listen: We understand how to resolve differences in a dignified manner and take great care to understand your unique needs.
- Do We Get Results? With a 98% case success rate, we offer the most cost-effective and time-effective solution on the Sunshine Coast.
You only have to read our Google reviews to be satisfied and confident that the outcomes we provide will get you the results that you deserve. If you think you require legal advice call our office for a 20-minute free consultation.
Thank you for reading this far and whether you contact us or not we wish you every success.
The information provided in this article is not legal advice; instead, all information, content, and materials available on this site are for general informational purposes only.