The length of time it takes to finalise a divorce in NSW varies significantly, but generally, you can expect the process to take between 6 to 18 months, and sometimes longer if the matter is complex. The timeline depends heavily on whether you and your spouse can reach an agreement on all aspects of your separation, particularly property and parenting arrangements.
What needs to happen before I can apply for a divorce?
Before applying for a divorce, you and your spouse must have lived separately and apart for at least 12 months. This separation must be genuine, meaning you intend to end the relationship, and is defined under section 48 of the Family Law Act 1975. A brief period of cohabitation within that 12-month period—up to three months—doesn’t necessarily restart the clock, provided you separate again, as outlined in section 50.
What is involved in the divorce application process?
Once the 12-month separation requirement is met, either spouse can file an application for a divorce with the Federal Circuit and Family Court of Australia. You must also file a statement outlining the arrangements for any children of the marriage. If a financial agreement is in place, the application must state that there is no reasonable likelihood of resuming cohabitation, as per section 14.
What happens after the divorce is granted?
A divorce order legally ends the marriage, but it does *not* deal with property division or parenting arrangements. These matters are separate and can be addressed either through a Binding Financial Agreement (BFA), or by applying to the court for orders regarding property settlement and parenting arrangements. A recovery order, if made, remains in force for a specified period or 12 months, as detailed in section 67W.
The enforcement gap
Even after court orders are made regarding property or parenting, enforcing those orders can be challenging. While the court can make orders for specific performance or impose penalties, actually obtaining compliance can require further legal action and may not always be straightforward. Costs orders can be made, but the method of calculation isn’t always specified, defaulting to a party and party basis under section 82. The court has discretion regarding costs, even if a party isn’t fully successful.
Questions to consider
- What steps can I take now to gather the financial information needed for a property settlement?
- How will a separation agreement impact the divorce process and any future court applications?
- What are the potential implications of my actions (or inaction) on the parenting arrangements for my children?
This information is general in nature and does not constitute legal
advice. For advice specific to your situation, contact JB Solicitors.