People wondering how to divorce in Australia should be aware of the required documents and procedures. This is because divorce is never an easy process and it will involve parenting agreements, child custody, and property settlements.
Moreover, divorce can greatly affect a Will especially if there are children appointed as beneficiaries of a Will. Couples wanting to know how to divorce in Australia should prove separation for at least 12 months. Furthermore, couples should also prove an absolute relationship breakdown to get a divorce. This involves both couples showing that they cannot have proper communication anymore due to:
- Communication problems
- Infidelity/trust issues
- Domestic violence and drug abuse
- Financial problems
- Work/time constraints
- Physical or mental disabilities
- Parenting issues
- Property disputes
Some people may wish to get a divorce to remarry someone else. Notably, according to the Marriage Act of 1961, all Australian States and Territories prohibit bigamy. Bigamy is a criminal offence wherein a person is legally married to two people at the same time. Thus, it’s important for couples to wait and finalise divorce proceedings before entering into a new marriage. This article will discuss how to divorce in Australia.
How To Divorce In Australia: A Basic Guide
Now, people might have chosen this article to know how to divorce in Australia. Indeed, divorce is never an easy process and it will cause a lot of distress for both couples. That’s why we have put this basic guide on how to divorce in Australia.
1. Prepare the needed documents
Firstly, couples seeking a divorce should prepare a divorce application at the Federal Circuit Court and Family Court of Australia. A person can file a divorce application with their ex-spouse or file the application alone. As of 2022, It costs around $990 to file an application for divorce.
Either option will still require a signature from one or both parties. While there are divorce kits online, they may not be able to present the best interests of a divorcing couple. Hence, divorcing couples should opt for a lawyer to draft their divorce application.
2. Signing before a qualified witness
After drafting a divorce application with a lawyer, couples will need to sign the application in front of a witness. Most divorcing couples sign their application before a Justice of Peace. Importantly, couples signing a divorce application must swear an oath on the bible or make an affirmation of truth. This is a way of couples stating that everything in the divorce is factual and credible.
3. Filing the divorce papers to the Court
Next, couples will need to photocopy the divorce application along with any supporting documents. Essentially, divorcing couples will need to pay court filing fees when submitting these documents. Some of these supporting documents are the:
- Marriage certificate
- Change of name certificate
- Counselling certificate
- Proof of citizenship
- Visa documents
4. Receiving the sealed documents
Then, the court will process these documents and will also set a court hearing date. They will also stamp and seal the original and the two photocopies of the divorce application. Couples who filed a joint application for divorce will each receive a copy. While a person who filed alone will receive both copies so that person can deliver one to their ex-partner.
5. The Court hearing
Finally, courts will issue a divorce order which becomes official one month and one day after the court hearing date. Couples who filed a joint application are not required to attend the court hearing unless they chose to do so. On the other hand, people who made a sole application will need to attend the hearing. This only applies if there are children from the marriage under the age of 18.
How To Divorce In Australia If I Was Married Overseas?
Overseas marriages are difficult as there are other legal factors to consider. Moreover, people wanting to know how to divorce in Australia may not even know the whereabouts of their ex-partner. Couples married overseas can get a divorce in Australia if:
- Both spouses are Australian citizens either by birth, descent, or grant of Australian citizenship;
- Both spouses lived or have lived in Australia for at least 12 months; and
- The person seeking divorce considers Australia as their home and has intentions to live in Australia.
These factors can help people married overseas to qualify for a divorce in Australia. However, the following instances may complicate the divorce process:
Time limits for divorce applications
Not everyone has the time to apply for divorce applications, especially when the marriage took place overseas. People have at least 42 days to deliver divorce documents to their ex-spouse living overseas before the court hearing.
The marriage certificate is not in English
With the various languages we have in our world, some people may not understand a marriage certificate’s language. People seeking a divorce should choose a law firm that provides legal advice in different languages. This way, it’ll be way easier to proceed with the divorce process.
The spouse is living overseas
People seeking a divorce may find it hard to serve the divorce application to their ex-spouse living overseas. However, there are reasonable options that people can apply for to the court. People can use substituted services or a third party to serve the divorce application.
On the other hand, dispensation services allow people to not serve the divorce application anymore. This is if they have made reasonable attempts in serving the divorce application. It’s recommended to seek legal advice on what option to use.
Why Couples Use Mediation To Settle Divorce Proceedings
Not all couples are privileged to afford court procedures or court filing fees. While mediation is mandatory for divorcing couples, this is also a cost-effective way to settle divorce proceedings. JB Solicitors is a nationally-accredited law firm that delivers quality services for divorcing couples.
Our family lawyers have experience in settling a divorce out of court through our mediation services. Whether it’s about parenting arrangements, child custody, or property settlements, our team can ensure that each parent gets fair judgements. We provide the best legal advice about how to divorce in Australia with the help of our fixed fees.
Reach out to a family lawyer today.