People often ask family lawyers about uncontested divorce Australia. As the name suggests, when two parties give full consent to divorce each other, it is an uncontested divorce in Australia.
Uncontested divorce in Australia is quite common wherein two parties simply agree that their relationship has irretrievably broken down. This means that parties are unable to communicate effectively and solve their differences.
Therefore, they agree to separate or get a legal divorce. But, are legal procedures different when it comes to uncontested divorce in Australia compared to “contested divorces”?
Yes, the legal procedures are different when we discuss uncontested divorce in Australia. For example, the divorce application procedures will differ between contested and uncontested divorce Australia.
This is because there is a difference in the most basic step of getting a divorce wherein a party disputes the divorce in cases of contested divorces.
In this article, we will discuss some key points in relation to contested versus uncontested divorce, and differences in application procedures. Moreover, the article also highlights certain contentious matters that come up during a divorce.
Contested Versus Uncontested Divorce Australia
Contested divorces are those in which two parties do not mutually consent to getting a divorce. In these cases, one party will wish to get a divorce, while the other may argue against getting a divorce.
In case of contested divorces, the party who wishes to contest the application will need to file a response to divorce within 28 days. This 28-day period applies in cases where the other party stays in Australia.
Whereas, the party who is consenting to divorce must file a response to divorce to a party living overseas within 42 days.
By its very nature, a divorce is extremely stressful. Regardless of whether it is a contested or uncontested divorce in Australia, parties may feel acute stress and anxiety. This is especially because of the subsequent processes that follow a divorce.
For example, making child custody arrangements, and reaching property settlement agreements can be a highly contentious process during a divorce. In fact, if the divorce itself is uncontested, there are still chances for two parties to dispute for parenting/property matters.
Divorce Application Process for Uncontested Divorce Australia
In Australia, a person who wishes to divorce their spouse can either make a sole application or a joint application. Additionally, in uncontested divorces, since both spouses consent to the divorce, both parties can make a joint application.
Joint applications involve two parties signing the Affidavit for E-filing application. This is an important part of the application for divorce. For the divorce to proceed, both parties need to sign this.
For joint applications, a party will first sign it, then get a copy of the Affidavit. He/she will then provide it to the other person.
On the other hand, in contested divorce cases, one party usually files a sole application for divorce. For sole applications, one party will need to file the application, and then subsequently serve it to the other party.
Applicants will be able to access hearing date details on the online portal. The online portal is Commonwealth Courts Portals.
Therefore, in cases of sole applications, the applicant has to serve the other party at least 28 days before the court hearing date.
Do You Have to Attend Court Hearing?
Importantly, our clients always asks us “do we really have to attend a court hearing”? You don’t necessarily have to attend the court hearing.
However, there are some instances in which parties need to attend the court hearing. For instance:
- You or your lawyer will need to attend the court hearing if you have filed a sole application and there’s a child of the marriage who is under 18 years of age at the time of filing.
- Attendance will be compulsory if the applicant has indicated (in their application) that they wish to attend the court hearing
Moreover, those who have filed a joint application do not need to attend a court hearing at all if they have specified that the case be heard by the court in their absence. This applies to uncontested divorce Australia, as this is where joint applications are involved.
Uncontested Divorce but Contested Matters?
It is not uncommon for two parties to mutually agree and decide to get divorced. However, as mentioned above, there are various matters within a divorce that can lead to disputes between two partners.
For instance, even though two parties have agreed to file a joint application for divorce, they may not agree on child custody agreements. Moreover, spousal support, child support and property division are all matters that may lead to disputes.
It may be difficult to handle these matters. In serious cases involving domestic or family violences, parties will need to seek expert guidance from lawyers who are well-versed on the subject of family law, and who have extensive knowledge about the Family Law Act (1975).
But, based on our experience with dealing with such divorces, we have noticed that even though parties may dispute about some matters, they find it relatively easier to reach agreements during mediation.
Importance of Seeking Legal Advice
Regardless of whether it is a contested or uncontested divorce, it is important to seek professional advice from family lawyers. This is because they can help with the divorce procedures itself, and assist with all matters that parties have to deal with after the divorce is finalised.
Mediation is a very important process in family law. In fact, in all family law matters, Family Courts have made it compulsory for parties to attend mediation or family dispute resolution before they approach the Family Court itself.
Quite often, parties are able to successfully resolve disputes through mediation. For more information about our services, please do not hesitate to contact our team. If you wish to gain more information on family law matters, click here and head to our family law blog section.
Contact our team if you have any enquiries.