Going through a divorce or separation is an emotionally stressful process. To add to this, many people remain confused about the very first steps that they need to take while getting a divorce. The aim of this article is to detail the first steps to divorce in Australia.
The first steps to divorce can include both procedural steps which includes signing applications, or it can include steps like informing your near and dear ones about the divorce. In this article, we will primarily focus on the procedural steps.
Step By Step Guide
In this section, we will go over all important steps that come under the first steps to divorce.
Step 1: Eligibility Requirements
To begin with the first steps to divorce, you need to check whether or not you are eligible for getting a divorce in Australia. Here’s a list of eligibility requirements for divorce in NSW. There are a few things that need to be proven to the court, which include:
- The couple is currently legally married;
- The couple has reached a point in their relationship where there are irretrievable differences; or there is an irretrievable breakdown of the relationship;
- The two parties have been separated from each other for more than 12 months (one year);
- In Australia to get divorced, either one party needs to be an Australian citizen, or permanent resident who has been living in Australia for at least 12 months; and
- If you have been married for less than 24 months (two years), the couple has to first participate in counselling processes. If this doesn’t help, it reflects that there is no chance of reconciliation.
In proving eligibility, the parties must also supply the court with all relevant documents. For instance, marriage certificate, citizenship proof, or permanent residency proof.
Step 2: Sole application or joint application?
When applying for a divorce, as part of the first steps to a divorce, you must know if you are applying for a sole application (individually) or joint application (both parties apply). There are some differences between the two.
Sole Application: In this case only one party will be signing the Affidavit for eFiling Application. The former spouse need not sign this Affidavit. The other partner will simply be served the application of divorce by the one signing the Affidavit.
Joint Application: In this case both parties sign the Affidavit for eFiling Application. Once one of the parties signs it, he/she will take a copy of the Affidavit and provide it to the other person to sign.
Step 3: Complete and file application for divorce
The Federal Circuit Court of Australia runs electronic court files for divorce applications. These forms must be filled out by you. Additionally, they also need to be signed and witnessed by a solicitor or Justice of the Peace. All applications are lodged through the Commonwealth Courts Portal.
It is important to gain legal advice by experienced family lawyers who can help you fill the forms accurately, and explain all relevant legal procedures to you.
Step 4: Court hearing and serving application
When making a sole application, at the time of lodging the application, you will be given a “hearing date.” After lodging the application, you also need to serve a copy of the application to the other party, i.e., your former spouse.
You must serve the application to your spouse at least 28 days before the hearing date. In cases where there are children involved, you will be required to attend the court on the hearing date. In other cases, you do not necessarily have to attend the court.
Step 5: Divorce hearing
As mentioned above, in case of sole applications where children under 18 years of age are not involved, you do not have to attend the hearing. Similarly, if you have made a joint application, you do not need to attend the court.
In cases where you need to attend the court, the registrar of the court will hear your application. Once the registrar checks all documents thoroughly, and is satisfied that everything is accurate and in order, the registrar will grant the divorce order.
Step 6: Finalising the divorce
Lastly, in finalising the divorce order, the court uploads a divorce certificate onto the Commonwealth Courts Portal which will be available for the involved parties to download for their own records.
Importantly, once the divorce has been finalised, there are certain key dates that need to be kept in mind. Once the order is finalised, the parties are given 12 months within which to divide any property, and settle assets and/or debts.
In other words, within 12 months from the date of Final Divorce Order, the parties need to:
- finalise property settlement matters either by consent orders through courts, or financial agreements like binding financial agreements;
- start the proceedings for spousal maintenance orders
If 12 months have passed and property settlement matters have not been dealt with – you will be prevented from commencing proceedings without first obtaining special permission from the court.
The guide above provides an overview of the first steps to divorce. There are additional things that you will need to do, such as informing relevant family members, and other authorities. For instance, where you and your former spouse had joint accounts, you will need to contact the relevant banks.
There are other things that you need to do after completing the first steps to divorce. Click here to read more about the post-divorce checklist.
JB Solicitors’ Legal Guidance
Now that you have an idea about the first steps to divorce, it is also important to know the importance of seeking legal guidance from family lawyers. Since divorce processes are complicated, you need a lawyer who can help you navigate through the procedures.
At JB Solicitors, we have expert family lawyers who have been dealing with divorce cases for many years. Whether you need guidance around the application itself – or other related matters like financial agreements – our solicitors are here to help you out.