Separating couples will want to know how to go about getting a divorce when they finally decide to end their marriage legally. Divorce is the process of legally terminating a marriage, however, couples must prove their separation to the family court. For starters, separated couples must show that they have been separated for 12 months before applying for a divorce order.
Another requirement for separation is that they should have also lived apart for 12 months. A couple is separated when they no longer reside together as a pair. Unlike a marriage or divorce, there is no formal process for “separation” since there is no application, paperwork, credentials, or signatures involved.
The informality of the separation process is often a source of dispute when knowing how to go about getting a divorce. This is because couples will have arguments on the date of their separation. Aside from the separation date, many separated couples should consider essential factors before filing a divorce application. Read on to know more about the steps to getting a divorce and important factors to consider.
Steps To Getting a Divorce in Australia
Here are the steps on how to go about getting a divorce in Australia:
1. Prepare necessary documents like a marriage certificate and application forms. There are two ways to file a divorce – through a sole divorce application or a joint divorce application form. If one party submits a sole divorce application, he/she is the “applicant” making the other party the “respondent”.
On the other hand, both parties are referred to as “joint applicants” when filing a joint application. Ex-spouses who want divorce online may file their application for divorce at the Commonwealth Courts Portal. Ex-spouses can still apply for a divorce even if they’re married overseas as long as they meet the following basic requirements:
- Were Australian-born or have acquired citizenship through descent
- Is an Australian citizen
- Are legally residing in Australia and intend to do so in the future. An applicant will have to provide that they have been living in Australia for 12 months.
- Both spouses agree to make a joint application
- One partner makes a sole divorce application online and is able to serve the application for to his/her spouse residing overseas.
Family Court Considerations
If there are no children involved in a sole application, you are not needed to be at the court hearing. But, what if there are children? This will typically require legal counsel or representation in divorce proceedings. In that situation, the Court will ask for evidence from both parents like financial and custody agreements.
On the other hand, joint applications will proceed directly to the decision-making stage and parties won’t need court hearings. The court will use the submitted documents in order to reach a decision. Furthermore, both ex-spouses must satisfy the court that they have made and agreed to necessary child-care arrangements if there are children under 18.
2. Sign the divorce papers or any other legal documents in front of qualified witnesses.
3. Lodge the signed papers to the court and pay a filing fee of $990. In some cases, some couples are entitled to a reduced fee of $330 if their financial circumstances apply.
4. Receive sealed documents. If a person filed for a sole application, they are responsible for serving the sealed document to their ex-spouse.
5. Court hearing or mediation. Courts will only typically require a court hearing as a last resort. Alternatively, ex-spouses can opt for mediation if they want to come to an amicable agreement. Only then will the court grant a divorce order after ex-spouses attend court proceedings.
How To Go About Getting A Divorce Hearing: Factors To Consider
1. Preparing Necessary Divorce Documents for a Divorce Application
Let’s say, for instance, a person does want to go through a divorce with his ex-partner. An important factor to consider when filing for a divorce is preparing a divorce checklist with the necessary documents. Preparing these documents not only saves a person money but also the time they will spend in the divorce process. Below are some of the documents needed for divorce:
- Marriage certificate
- Tax returns
- Bank statements
- Check registers
- Investment and financial statements
- Retirement account statements
- Employee benefits handbooks
- Life insurance policies
- Mortgage documents
- Credit card statements
- Family trusts
- Social Security statements
- Stock grants
- Vehicle registrations or titles
2. Focus on the Children’s Best Interests
Indeed, children are the biggest factor when talking about how to go about getting a divorce. How will parenting time change? Do ex-spouses need to arrange child custody agreements? What about child support payments? How the matter turns out depends entirely on how ex-spouses agree on these arrangements. According to Section 60CC of the Family Law Act 1975, the child’s best interests are:
- The benefit of children in having a meaningful relationship with both their parents and other significant people in their life. This includes having substantial and significant time with their parents and significant people in their lives.
- The benefit of protecting children from any form of harm, abuse, or neglect. This includes protecting the child from witnessing or experiencing family violence or any type of family abuse.
Child custody agreements or parenting plans are arrangements that contain plans on how parents will take care of their children. If all goes well, parents may make these agreements themselves and have the court turn them into consent orders. However, if both parties continue to disagree, the court will handle the arrangement and can make binding parenting orders instead.
3. Parenting Plans
As mentioned, it’s important to draft parenting plans for children when knowing how to go about getting a divorce. Divorce takes a toll not only on ex-spouses but also on children.
Parenting plans will help children develop properly since they still need guidance from both of their parents. It’s important to note that ex-spouses invest in making well-prepared schedules to avoid confusion on time and days. Parenting plans typically include:
- Communication methods
- Transportation and child changeovers
- Changes to parenting time and plans in case of unforeseen circumstances
- How the children will communicate and/or spend time with their siblings, relatives, grandparents or extended family members
- Vacations and holidays
- The child’s education and extracurricular activities
- The child’s religion, culture, or indigenous heritage
- Health care arrangements
- Instances of relocation
4. Considering Finances and Property Settlement
It’s important to consider finances when knowing how to go about getting a divorce. In some cases, an ex-spouse is financially reliant on his/her spouse. For instance, the higher-earning spouse has a big business that financially supports the family, while the lower-earning spouse is working part-time since he/she is caring for the child.
Hence, some spouses may start saving up if they anticipate that they may experience financial hardship after the divorce. But, what if lower-earning spouses don’t have the means to save up for the divorce? Lower-earning spouses who fear financial instability can receive spousal maintenance from their higher-earning ex-spouses. This is if they can prove that they:
- Can’t get a job due to mental or physical disabilities
- Are the primary carer of the child, hence, losing time to look for a job
- Can’t get a job due to lack of resources (college degree, financial support, and opportunities)
Property settlement enables separated spouses to split their finances and assets. This also includes splitting the marital home if they have bought a house.
5. Considering Reconciliation
After a breakup, it’s common to find that couples are considering reconciling with each other. Hence, this makes it hard for couples and courts to point out exactly when the relationship ended. We have another article that explains Section 50 of the Family Law Act which is all about resuming cohabitation.
6. Reach Out to Friends, Family Members, and Family Lawyers
All couples have their own family members and friends to run to when they’re having relationship problems. After all, they’re the people who may have witnessed the growth of a relationship. So it’s safe for couples to have a chat with their friends and family if they’re having a relationship breakdown. But, if things get out of hand, it’s highly advised to get legal counsel when knowing how to go about getting a divorce.
What if We’re Still Separated but Living Under One Roof?
Not all couples live apart right away after separation for personal reasons. Some couples actually still live together even after they’ve decided to separate from each other’s lives. However, the court will still consider approving a divorce application even though couples have separated under one roof. This is if couples can prove that they:
- Refuse to go to social gatherings together
- Stopped wearing their wedding rings
- Are sleeping in separate bedrooms
- Stopped sexual activity
- Stopped doing household chores for each other
JB Solicitors’ Professional Legal Advice For Divorcing Couples
Divorcing couples will need professional legal advice when they want to know how to go about getting a divorce. This is because the divorce process is lengthy and will require a lot of paperwork just for the family court to approve a divorce.
With JB Solicitors’ help, ex-spouses won’t need to attend court proceedings since our lawyers are experienced in handling such cases. Our lawyers can lead the way to a smooth divorce process through our mediation services.
Contact our team of seasoned lawyers today to know how to go about getting a divorce.