While there are successful marriages, relationships can also breakdown and couples tend to think of different steps to getting a divorce.
Long periods of good health, forming friendships, and sparking business initiatives are all possibilities in a healthy marriage.
However, many of these pleasant things will be counterbalanced by adversities throughout the course of a lifetime. Unemployment can strike without warning, friendships can fade, business projects can fail, and marriages can and do fail.
To make matters worse, health often suffers during times of intense stress.
That is why we have put together this article regarding steps to getting a divorce in Australia. The article includes an overview of divorce and its procedures. These suggestions and processes are applicable across Australia, according to the family law system.
Eligibility For Divorce
A divorce is a legal event that recognises the permanent breakdown of a marriage. A divorce is finalised after parties file a federal court application.
All standards set out in the Family Law Act 1975 (Commonwealth) should be met. The court will then issue a divorce order.
Notably, the Commonwealth legislation governs divorce law. Thus, this applies to all states and territories in Australia. When it comes to steps to getting a divorce, the law regards same-sex and opposite-sex marriages equally.
There are other events which could signify the end of a relationship. These are different from a divorce. For instance:
- The end of a de facto relationship
- The end of a civil partnership/union
There are various procedures and steps to getting a divorce. Parties must complete these procedures if they wish to apply to the court.
Section 39 of the Family Law Act of 1975 lays out the conditions, which specify that a divorced applicant must be an Australian citizen, a domiciled Australian, or an ordinary Australian resident that has a 1-year residency.
A candidate must also meet the ‘separation’ condition after completing the citizenship/residency requirement before proceeding with steps to getting a divorce.
Divorce is granted when a couple’s marriage has irreversibly broken down. Section 48 of the Family Law Act (1975) provides this definition.
Furthermore, Section 48 states that this can only be proven by establishing that the parties separated and lived apart for at least 12 months immediately preceding the filing of the divorce order application.
Also, under Section 48, the court will not grant a divorce if the court believes there is a substantial chance of cohabitation. This means that determining the date of separation is critical.
5 Steps To Getting A Divorce
1. Preparing Divorce Papers
Initially, the divorce applicant must prepare and complete an application for divorce. Spouses can submit a signed joint application or a solitary or sole application, in which case the spouse submits the application on their own.
There are divorce kits online but it is not advisable to opt for them. This is especially true when an applicant is not certain about what to enter in divorce papers. It is best to speak with an experienced family lawyer when handling such documents.
It is also important to bring extra copies of the following:
- Marriage Certificate
- Change Of Name Certificate
- Counselling Certificate
- Proof Of Citizenship (valid IDs, passports, visa documents)
2. Involve Witnesses
An applicant must sign their divorce application papers in front of a qualified witness after they have drafted them correctly with a lawyer. In Australia, the majority of people sign their divorce papers in front of a Justice of the Peace. To find a local Justice of the Peace, contact your local government or look online.
The applicant must either swear an oath on the bible or make an affirmation of truth, stating that the contents of their application are true and accurate to the best of their knowledge while signing the application.
3. Filing Of The Application To Court
After step 2, the applicant should have an original divorce application. A professional witness must sign and attest this.
A joint application is one that has both spouses sign it before it is filed with the court.
As mentioned in Step 1, the applicant must next file the necessary paperwork with the Family Law Courts. An applicant can either file documents in person or at their local Family Courts registry.
Final Steps To Divorce
4. Receive Sealed Documents
The Could will process and enter the application into their system when you have filed the paperwork as described in Step 3 above. The Could will assign a date for the hearing. This is usually a couple of months after the date of filing.
The Court will also stamp the application with its seal on the original and two photocopies. Because they bear the official stamp of the Family Court, the records are now known as “sealed” documents. The original sealed divorce application will be kept by the court for their records.
If you filed a joint application for divorce, the court will send you one sealed copy and your ex-spouse another copy. On the other hand, if you filed a sole divorce petition, the court will mail you both the sealed copies. You must then arrange for a sealed copy to be delivered to your ex-spouse.
5. The Court Hearing
After filing divorce papers, the applicant will be notified of the court hearing date. If the divorce documents are in order and contain all of the essential facts, the Court will issue a divorce order at the hearing. One month and one day after the Court hearing date, the divorce order will become final.
If you have submitted a joint application, you are not required to attend the Court hearing, although you may choose to do so if you like. If the applicant is making a joint application and the couple had children under the age of 18, the applicant must appear in court.
Notably, the applicant is not obliged to attend the hearing if a sole application was made and there are no children under the age of 18.
Steps To Getting A Divorce: Choosing Mediation
Disputes do arise during divorce proceedings and most couples who refuse to make an amicable agreement would rather go to court.
While the steps to getting a divorce mentioned above are commonly used by spouses, JB Solicitors offers mediation services for couples. This is an effective alternative where lawyers help both parties to have a healthy discussion. This is more cost-effective than opting to go to court.
Contact JB Solicitors today.