Most people considering or about to start the process of separation or divorce with their current spouse might wonder how long it takes for a divorce to be processed in Australia. There are numerous steps required before a divorce is finalised – which could take anywhere from four months or even up to 18 months. If you’re one of the people considering undergoing this process, we have compiled some answers to one of the most frequently asked questions about the divorce process.
What is the difference between separation and divorce?
The main difference between the two is that divorce is a legal process of ending a marriage, whereas separation does not require any legal process. Separation occurs when a couple chooses to no longer be in a relationship. Whilst separation is not a legal process, it is a requirement to be separated for at least 12 months before you can apply for divorce.
For a couple to be separated, both parties must be aware of the separation. The desire for separation does not have to be mutual for the separation period to commence, rather one member of the couple must advise the other of the separation.
It is also essential to consider that there are different definitions of separation for every relationship. For some couples, it’s moving into separate residences and no longer having shared information or accounts; for others, it could be that they still live together for their children or because one or both are unable to move out due to finances. If you are part of the latter where you still live together, obtaining an affidavit is required to prove a legitimate separation. Separating existing banking or shared accounts, like a Medicare card, will help establish the separation.
Couples may separate but choose to stay legally married. This could be due to the financial ramifications of getting divorced.
If you plan to remarry in the future, divorce is required to end your current marriage legally. Remarrying while legally married will still be a criminal offence despite being separated within a marriage.
What is the divorce process in Australia?
For the divorce process to begin, you and your former partner need to be able to prove that you have been separated for at least 12 months and a day. It is not required for the separation to be continuous, and it is also not required to point out who is “at fault” for the divorce to occur, as the Australian divorce system follows the no-fault divorce system (which was implemented in 1975 after the Family Law Act was passed). If the separation has not been continuous, the reconciliation period must be under three months, and it will not count in the required separation period.
The divorce process also differs depending on whether you apply on your own or with your spouse.
If you’re applying for a divorce together, you can do so as joint applicants by filing your divorce application with the Federal Circuit and Family Court of Australia.
If you’re applying for divorce alone this process is called a sole application. Sole applications can take place if the former partner does not agree to separate or have a divorce, if the sole applicant is afraid of asking for a divorce, or if you cannot locate your former spouse. You will be referred to as the applicant, while your former spouse will be called the respondent. It is required to ensure that the former spouse has been served the application for divorce, whether you handed it in or not. This process of serving the application can be done through a trusted friend or family member or professional process service.
Do I need a lawyer? Should I get one?
No, a lawyer is not needed to file a divorce, but it is recommended that you speak to one. You can still file your divorce application alone or with your former spouse online or through court documents.
If you do get a lawyer for your divorce, it can help make the process vastly more accessible. They can be there to advise you, ensure agreements, and create options that benefit you, your situation, and fulfill your legal rights and obligations.
If you do work with a divorce lawyer, you may be required to answer a number of personal questions, this helps to ensure you are getting the right advice and best potential outcome.
Can a divorce get delayed?
There are multiple reasons why a divorce could be delayed, which is why a divorce lawyer might come in handy. They can help to ensure a thorough and correct application, but here are some of the most common reasons why a divorce might be delayed:
- If you need to replace your marriage certificate or you’re unable to replace it.
- If you’ve been married for less than two years, you are required to either attend counselling to resolve your issues. In instances of domestic or family violence, this will not be required.
- If you cannot locate your spouse to serve them with divorce papers. There are exemptions available for this requirement.
- If your application or part of your application for divorce is not satisfactory in the eyes of the Court – for instance, if the Court believes the arrangements of your children are not appropriate for the circumstances.
How much does a divorce cost?
An application for divorce can cost $990. If you can demonstrate or prove financial hardship, it can reduce the fee to $330. Naturally, you and your spouse can split the costs, but when applying alone, your former spouse has no obligation to pay the fee with you.
What makes me legally divorced?
You will be issued a decree one month after completing the hearing and application. After this, your divorce will be granted. To obtain a copy of your divorce order, you may apply a day after the finalization of the order from the Commonwealth Courts Portal.
Conclusion
A divorce or separation is an often-trying time in a person’s life. The process can be lengthy and complicated, which is why working with a family law specialist can make the process significantly easier to work through.
