The separation and divorce process can be emotionally and financially challenging. Underestimating how intertwined long-term relationships are with children and valuable assets can sometimes cause significant issues. Failing to prepare and educate yourself may prolong legal processes, increasing financial costs. This lack of preparation will add stress and personal conflict to a strained situation.
This article will discuss 11 helpful stress-free steps on how to get a divorce in Australia.
How do you get divorced in Australia?
If you’re in a difficult marriage or relationship, you’re likely looking for a way out. But how do you find that perfect solution to make your situation more manageable and less painful?
Isn’t that what we all want?
An amicable divorce with assets split equally?
Unfortunately, this often doesn’t happen. Many couples head down the destructive, spiteful path of trying to get revenge on their ex-partners. At that point, one party usually has had enough and wants out.
When it gets to this stage, you might ask, “Do I need consent from my partner to apply for a divorce?” The short answer is no. One spouse can initiate a divorce. When filing for divorce independently, you must ensure that a third party over 18 provides all relevant court documents to your ex-spouse. The Court must be satisfied that you have served your ex-spouse the necessary paperwork before it will grant a divorce.
Sometimes, it may be too impractical to serve the documents conventionally. The Court may order an alternative method to deliver the paperwork in that case. This practice is known as substituted service.
If you want to make your divorce process easier, we can help!
Download our FREE All In One Divorce Checklist for a more detailed guide on the next steps.
11 Steps on How to Get a Divorce in Australia
Step 1: Consult a Right Family Lawyer
Divorce is a challenging phase in anyone’s life. Navigating it alone might seem tempting, but it has potential pitfalls. Without professional guidance, family law matters can go badly wrong. That’s why seeking legal advice from an expert divorce lawyer is crucial. They specialise in organising proper arrangements for divorce.
Divorce isn’t just about ending a marriage legally. It’s about ensuring your rights and entitlements are protected. Even if you didn’t contribute financially, you have rights. A divorce lawyer can help you understand and claim them. They can guide you in getting a fair property division. Without their expertise, you might lose out on what you deserve.
Children add another layer of complexity to divorces. Their well-being and future are important. Decisions about their care need careful consideration.
- Who will be their primary carer?
- Will child support be necessary?
- How will their medical, educational, and spiritual needs be met?
These questions are vital and require thoughtful answers.
Emotions run high during divorces. A divorce lawyer can provide objective advice, ensuring emotions don’t cloud decisions. They can also help mediate between parties, fostering a smoother process. Remember, the goal is a fair outcome for all involved.
Divorce isn’t just about two people parting ways. It’s about assets, rights, and children’s futures. Professional legal representation is more than just an option. It’s a necessity to avoid financial and emotional distress. Always prioritise your and your family’s well-being.
Step 2: Prepare Yourself Mentally
Staying focused and in control during a divorce is essential. We recognise that divorces are inherently emotional. They can range from being mildly distressing to profoundly traumatic. It’s natural to feel a whirlwind of emotions, from sadness to anger. However, it’s crucial to remember the bigger picture.
Allowing emotions to dominate can have repercussions. It can cloud your judgment, leading to decisions you might regret later. Moreover, unchecked emotions can impact you and those around you. Your children, family, and friends might bear the brunt of your emotional outbursts.
During this period, you’ll address critical issues. Parenting arrangements and financial agreements are paramount. These decisions will shape your future and that of your children. Approaching them with a clear and level head is vital. Emotional decisions can lead to unfavourable outcomes, complicating the process further.
We recommend reading our article for more guidance on managing emotions during divorce. It offers insights into navigating this challenging phase with grace and resilience. Taking the emotion out of this difficult time will pave the way for smoother transitions and better futures.
Step 3: Take Your Time
It can be challenging, but divorces are often lengthy. While we wish it were always quick and straightforward, that’s not the case. The proceedings can stretch out in certain situations, sometimes even spanning years. These prolonged cases often arise when both parties aren’t on the same page regarding the divorce. When disagreements and disputes intensify, the process can become more drawn out.
We understand the frustration and emotional toll this can take. In these times, patience is more than just a virtue; it’s a necessity. It’s essential to remember that every step, no matter how small, is progress.
However, if the weight of the proceedings becomes too much, remember you’re not alone. There are resources available to help you navigate these challenges. Qualified counselling services specialise in offering emotional support and guidance during such trying times.
They can provide a listening ear, coping strategies, and a fresh perspective to help you manage the stress and emotional upheaval. Seeking help is a sign of strength, not weakness. It’s okay to lean on others when the journey becomes too burdensome.
Step 4: Budget for Legal Costs
Navigating a divorce without adequate financial resources can be daunting. However, there are options available to assist you. If hiring a family lawyer seems out of reach due to financial constraints, don’t despair. Reach out to Shanahan Family Law. Our dedicated team will evaluate your situation and determine if you qualify for Legal Aid assistance. This program is designed to help those in need access legal representation.
Alternatively, discover how to apply for a divorce without incurring solicitor fees to minimise costs. Empower yourself with knowledge and seek the best path forward.
Step 5: Separation and Living Arrangements
Communication often becomes a significant challenge when a relationship reaches breaking point. Misunderstandings can escalate, and emotions can overrun. In such situations, an impartial mediator can be invaluable. They can facilitate constructive conversations, ensuring both parties are heard and understood. Shanahan Family Law has a network of experienced mediators who can guide you through this delicate phase, helping to re-establish open dialogue and start productive negotiations.
Preparing for separation requires careful planning, especially when children or other dependents are involved. It’s essential to consider living arrangements post-separation. Families have various options to explore. Some choose to cohabit with parents living together but not as a romantic couple. This can provide continuity for children. Alternatively, families can formalise separate living and visiting arrangements through written agreements, ensuring clarity and minimising potential conflicts.
Several key points to keep in mind include:
- A divorce decree necessitates that couples live apart for at least twelve months before filing. However, the Family Law Act clarifies that living under the same roof doesn’t negate the separation.
- If you’re the primary carer for your children, it’s crucial to ensure your accommodation meets a certain standard. A stable, safe, and nurturing environment is paramount for their well-being.
- When deciding on living arrangements, consider the emotional atmosphere at home. Assess the level of animosity and whether it’s conducive to cohabitation. Also, evaluate the financial feasibility of maintaining two separate households.
In all decisions, prioritise the well-being of all involved, especially the children.
Separation Under One Roof
Section 49(2) of the Family Law Act 1975 makes it clear that parties can live under one roof yet still be separated:
“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 had occurred and when it commenced. To resolve these issues, you may need to provide evidence, as the Court is wary of parties submitting false claims of separation. At the very least, it would be prudent for the parties to sleep in separate rooms and keep the rendering of household services to each other to a minimum.
Many practical problems arise when couples live under the same roof during a divorce. The Courts will want to establish that the parties have separated and when the separation started. You must not, under any circumstances, attempt to deceive the Court in your separation claims. Couples should document all steps they took to maintain their separation properly.
The applicant and respondent must file an affidavit with the Court when they have lived separately in the same home for 12 months. These affidavits 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 in the Same Room Arrangements
If you want to know if you qualify as separated under one roof, here are some questions to ask:
- What are your new sleeping arrangements? Are you sleeping in a different bedroom?
- Do you continue to perform domestic services for the other?
- Do you have sole bank accounts set up?
- Is there less social interaction and arrangements of activities?
- Do you maintain separate social circles?
- How and when did you inform your kids (if any), family and friends?
- Why did you decide to continue to live separately 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?
If you want to make your divorce process easier, we can help!
Download our FREE All In One Divorce Checklist for a more detailed guide on the next steps.
Step 6: Divorce and Children in Australia
Children are often the most affected during a separation, and their well-being should be at the forefront of all decisions. Their needs, emotions, and security are paramount, whether they are joint offspring or children from prior relationships.
Key points to consider include:
Maintaining Civility
Parents must remain civil, especially in front of their children. The emotional turmoil of separation can be overwhelming, but parents must strive to shield their children from negativity. Courts often view those who prioritise personal grievances over their children’s well-being unfavourably. Remember, children rely on both parents for physical sustenance and emotional stability. Ensuring they remain insulated from the bitterness and resentment often accompanying separations is essential.
Establishing Suitable Arrangements
Every child has the right to maintain relationships with those they hold dear, including parents, grandparents, and extended family. Courts typically intervene only when there’s a genuine concern about a child’s safety, such as in domestic violence cases. It’s not in the child’s best interest to be denied access to a parent without a valid reason.
Once a couple decides to separate, it’s vital to establish a consistent routine for the children. While this arrangement might start informally, it should always prioritise the children’s needs and comfort. Denying a former partner access to their children without cause can complicate the separation further, leading to increased emotional strain and financial costs.
Further Reading
We recommend reading our detailed article on recovery orders if you’re seeking more in-depth information. It provides insights and guidance on ensuring children’s rights and wellbeing remain protected during and after a separation.
Step 7: Divorce Documentation
Legal proceedings, especially those as intricate as separations, rely heavily on proper documentation. Filing papers incorrectly is a common mistake people make. Building a comprehensive portfolio of all pertinent documents is crucial in ensuring a smooth separation process. Initiating this task early on is advisable, especially when one partner holds significant sway over family matters or might attempt to obstruct the separation by being uncooperative or withholding vital information.
Key documents to gather include:
- Passports: Essential for verifying identity and international travel records.
- Marriage Certificate: The foundational document confirming the legal union.
- Wills or Post-mortem Instructions: These clarify posthumous wishes and asset distribution.
- Naturalisation and Change-of-name Papers: Vital for those who’ve undergone citizenship changes or name alterations.
- Personal Identification: This encompasses driver’s licenses, Medicare cards, and other ID documents that confirm personal details.
- Financial Records: Bank books and statements offer a transparent view of financial standings and transactions.
- Residential Documents: Lease agreements for the primary residence, mortgage papers, or Certificates of Title give insights into property ownership and liabilities.
- Investment Properties: If you have properties rented out, they must have their lease documents on hand.
- Property Arrangements: Any agreements or contracts related to property ownership or division.
If original documents are inaccessible, try to provide photocopies. While originals are preferable, copies can still serve as interim proof until originals are available.
Do you need legal assistance with your divorce? Our divorce lawyers are here to help.
Step 8: Finance and Divorce
Finances often emerge as a primary point of contention during separations. Joint and individual financial resources can lead to disputes, especially when unexpected burdens arise that neither party anticipated or is willing to shoulder. To navigate this complex terrain, separating couples should approach their financial matters methodically.
- Seek Immediate Financial Advice: If the family’s financial situation appears bleak, it’s imperative to consult with a financial advisor promptly. Their expertise can provide strategies to mitigate potential financial hardships and guide you towards stability.
- Budgeting: Draft a detailed budget to gauge the feasibility of living separately. This budget should account for childcare expenses, routine bills, and any unforeseen costs that might arise.
- Close Joint Financial Channels: To prevent future disputes, promptly close all joint accounts, credit cards, and other shared debt avenues. This step ensures no ambiguities regarding who is responsible for specific expenses post-separation.
- Audit Finances: Conduct a thorough review of joint and individual financial assets and liabilities. Document everything meticulously, as courts reference this data during the settlement process. This audit provides a clear picture of the couple’s combined financial standing.
- List Major Assets: Compile a comprehensive list of significant assets, ensuring each item has an estimated or precise valuation. This inventory should encompass cash flows from investment properties, stock portfolios, other tangible and intangible assets, and superannuation funds held by both parties.
By addressing these financial matters systematically, couples can pave the way for a more amicable and fair separation, minimising potential disputes and ensuring both parties are financially stable.
Step 9: Communication
Separating couples should endeavour to keep their lines of communication with each other as open as possible.
- Agree to 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. If you do, the Court will scrutinise these as deemed necessary, and it may harm 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.
Step 10: Be Careful with DIY Approach
Sometimes, partners have attempted to undergo the process without professional legal assistance. 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.
The Court then awards them another settlement, leaving the other party at a massive loss in their overall assets. There are risks involved in attempting to do something yourself rather than hiring a professional lawyer.
The best way to protect your entitlements during a property settlement is to bind your financial agreement legally. There are two ways you can do this:
- Enter a binding financial agreement;
- Seek consent orders from the family court.
Binding financial agreements
Binding financial agreements allow couples to enter contracts regarding their assets without appealing to the Court. For a valid contract, both parties must show they received independent legal advice regarding what they agree to and if it’s in their best interests.
These kinds of agreements can be risky as there is no need for the contract to be fair or balanced, and once you sign the agreement, you must abide by its terms. You can have greater leeway on the terms you may agree to without this need for equitability. But, one party may also receive less than their entitlement. The only way to nullify a legally enforceable financial arrangement is to create a new agreement.
Consent orders
Consent orders protect your financial interests when organising a property settlement with your former spouse. When the Court considers your application, it’s primarily concerned with ensuring the agreement is fair and equitable for both parties. If the Court isn’t satisfied that you have met this standard, it will deny your application.
Therefore, consent orders give you less freedom to make agreements. However, they can protect your interests better if you’re concerned about being manipulated.
- Check this out: What Are the Risks of DIY Vs Hiring Professional Family Lawyers?
Step 11: Celebrate your Divorce Outcome
If you have agreed, go ahead and celebrate. Our clients at Shanahan Family Law do this because the process works according to their needs.
While these steps might appear simple, there are plenty more pitfalls when finalising a separation. At Shanahan Family Law on the Sunshine Coast, we can assist you in avoiding those pitfalls. There are many services we can offer, including:
- Complying with service time limits;
- Drafting affidavits;
- Explaining name changes;
- Responding to a divorce application;
- If needed, file a sole application and attend the court hearing on your behalf.
Divorce can be a difficult and emotionally draining experience, but it also presents an opportunity for personal growth and a chance to create a new and fulfilling life. Making a conscious effort to focus on the positive aspects of your life and engaging in activities that bring you joy can help you find happiness after divorce.
Ending a Foreign Marriage in Australia
It’s perfectly possible to pursue a divorce in Australia if you were married overseas. However, there are some extra considerations.
To be eligible for a divorce in Australia, at least one of the following must be true of you or your spouse:
- Consider Australia your home and intend to live here indefinitely;
- Are an Australian citizen or resident;
- Typically live in Australia and have resided here for the 12 months preceding your divorce application;
You must also demonstrate you and your spouse separated over a year ago, like any other married couple.
As long as you demonstrate a sufficient connection to Australia, the process for getting a divorce order is the same.
One other consideration is your marriage certificate. If the certificate is in another language, you must get an English translation from an accredited translator and an affidavit detailing their qualifications. Once you’ve done this, submit your original marriage certificate, the English translation, and the affidavit to the Court.
Applying for Divorce in Another Language
If English is not your first language, dealing with the legal jargon that comes with court proceedings can be a significant barrier. Services are available to help culturally and linguistically diverse people navigate Australia’s legal system.
The Department of Home Affairs provides the Translating and Interpreting Service (TIS) nationally. The TIS assists people in over 150 languages and can work with you on-site, over the phone, or on a video call.
It’s also helpful to have someone you share a cultural background with, such as a close friend or family member, that you can rely on for emotional support.
Same Sex Marriage
Same-sex marriage has been legal in Australia since 2017. There is no impediment to same-sex couples getting married or divorced in Australia, nor are the processes any different.
Likewise, foreign same-sex marriages are also legally recognised in Australia, provided they meet the requirements of a valid marriage. A marriage is invalidated if:
- At the time of the marriage, one party was already legally married to someone else;
- One party was not of marriageable age in Australia;
- The parties are too closely related;
- One party was forced or otherwise manipulated into the marriage.
Certain countries, such as Italy, have not legalised gay marriage but have implemented civil unions. Civil unions provide a similar, but not identical, legal footing to traditional marriages. It’s worth seeking specific legal guidance concerning whether civil unions meet the requirements for a valid marriage.
How to Get a Divorce Without Going to Court?
In Australia, there is an option for an uncontested divorce. If the parties apply jointly, you’re often granted an uncontested divorce within a short period. In a sole application for divorce, if the respondent readily signs their required paperwork, an uncontested divorce is also often granted within a short period.
If there’s no agreement to a divorce, proceedings can take months or, in many cases, years. This extended proceeding is known as a contested divorce. Call our office if you have questions about an uncontested divorce or require legal advice on another matter, like sole or joint applications.
Family Court Divorce Hearing
If you’re going through a contested divorce in Australia and have a date to attend Court on a hearing date, visit here or refer to the 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.
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.
We understand that some married couples divorce because of domestic violence. If this is the case for you and you are in immediate danger, we ask that you seek urgent help by calling the police on 000. Contact our office for legal advice if you’re not in immediate danger. Visit this page for a list of other helplines: Whiteribbon Australia.
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. Most people want to find alternative solutions if their marriage broke down. But even if you aren’t, you want to ensure your marriage (or whatever other relationship you are in) ends as smoothly and quickly as possible. This concern is especially true if you have children to consider and many assets to split. Are you confused or concerned? Reach out and get legal advice.
Do I need a lawyer to get divorced?
The divorce rate remained at 1.9 per 1,000 people. That means 41,573 marriages ended in divorce in 2020. In 2020, there were 78,989 marriages, a 30% decrease from 2019. Couples divorcing may choose to prepare and file their applications in Court themselves. However, many still require a family divorce lawyer to provide legal advice and assistance.
You might ask, how do I get a divorce in Australia? Married couples considering a divorce will be subject to the terms in the Family Law Act 1975 (Cth) (“the Act”). This is the Australian law that deals with divorce applications.
There are three factors couples need to consider in preparation for their marriage’s dissolution, namely:
- Having a clear understanding of your circumstances will significantly influence the outcome.
- Knowing everything you need to know about your divorce case. Knowledge is power, after all.
- Being clear about the legal process. This understanding will save you money, time, and stress.
How Can Shanahan Family Law Help?
Learning these 11 steps before you get divorced will mitigate many problems. You will also minimise the cost and harm of obtaining consent orders for property settlements or parenting arrangements. Choose a law firm that genuinely cares about your situation and will fully understand your legal position to ensure you experience fewer complications as the process unfolds.
Shanahan Family Law recognises that break-ups are challenging, both emotionally and financially. We will assist and support you every step, whether by applying for a divorce online or in our office.
- 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 Sunshine Coast’s most cost-effective and time-efficient solution.
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.
Thank you for reading this far. Whether you contact us or not, we wish you every success.
If you need help with family law matters, contact us for a free discovery call.
The above information is intended to be general advice only and is not a substitute for personalised advice. Because it does not consider your individual circumstances, it is not intended to be relied upon, and any loss or damage arising from any such reliance is disclaimed. Any financial or legal decisions should only occur after you have received tailored advice from a legal or financial professional.
