What is the Process for Getting a Divorce?
Applying for divorce can be emotionally stressful.
Whether you submit the application yourself, or with the help of a divorce lawyer, knowing what to expect will make the process a lot easier.
Here’s everything you need to know.
To be eligible to apply for divorce, you must meet the following criteria:
- 12 month Separation Period: You and your spouse must have been separated for at least 12 months and one day. If there was any reconciliation during this time, the 12 month waiting period will restart from the time the reconciliation period came to an end.
- No chance of Reconciliation: There must be no realisable likelihood that you will get back together. If you have been married for less than 2 years, you will need to attend marriage counselling. If, after counselling, both of you (and the counsellor) agree there is no chance of reconciliation, the counsellor will provide you with a counselling certificate. You may be required to pay a small fee in order to attend counselling.
Thirdly, Either you or the other party of the marriage must be one of the following:
- Born in Australia of have become an Australian citizen by descent
- An Australian citizen by grant of Australian citizenship (you will need to provide a citizenship certificate).
- Lawfully present in Australia and intent on continuing to live in Australia. Also, you must have been living in Australia for at least 12 months, and you will need to provide evidence of this claim.
If you’re unsure whether you’re eligible to apply for divorce, or you’re unsure about your legal rights, consult a divorce lawyer.
At McDonnell Schroder, your first consultation is free. So you have the chance to explain your case, receive helpful legal advice, and decide if our team is the right choice for you. There is absolutely no cost for this free service.
To book an appointment with one of our qualified divorce lawyers, call (02) 9622 1155. Alternatively, fill out the online form.
How to Apply for Divorce
Either one or both parties in a marriage can apply for divorce through the online Commonwealth Courts Portal.
Alternatively, a divorce lawyer – who is already registered with the Commonwealth Courts – can collect the necessary details and apply for the divorce on your behalf, saving you time and potential stress.
There are different criteria and obligations depending on whether the divorce is filed as a solo or joint application. It is important that both parties are aware of these differences, as they can have a significant impact on the success of the application. The same online application portal is used regardless of the type of application.
Here are the differences you should know about.
At the start of the application, you must confirm that you are submitting the application on your own.
When you make a solo application, through the eyes of the law, you are known as the ‘applicant’ while the other party is known as the ‘respondent.’
Only you (the person filling out the solo application) is required to sign the Affidavit for eFilling Application. The other party is not required to sign the Affidavit for the eFilling Application.
However, you will be required to prepare the necessary documents and serve the documents to your spouse. This can be done via postal or in-person. If you cannot locate your spouse, and you have taken all reasonable steps to serve the application to them, you can apply for a substituted service.
Your divorce lawyer will let you know if you’re required to attend court. If there are no children in the marriage, you are not required to attend court. If there are children under the age of 18 years, you are required to attend court.
At the start of the application, you must confirm that you are completing the application together with the other party.
Generally speaking, one person will fill out the application. They will then pass it on for the other party to review and sign. In some cases, both parties will together fill out, review, and sign the application in the one session.
Both applicants are required to sign the Affidavit for the eFilling Application.
If submitting a joint application, neither of you are required to attend court. This applies whether or not there are children under the age of 18 years present in the marriage.
What happens if one Party Disagrees with the divorce?
Sometimes, one party will disagree with the other party’s decision to apply for divorce. They may disagree with the nature of the divorce, certain claims or statements made in the application, or the need to attend a formal court hearing. When this happens, the other party may refuse to sign the divorce papers.
Unless the opposing party can prove they have legal grounds to oppose the divorce – for example, if they can prove the 12 month separation requirement has not been met – the divorce may still go ahead.
This is because, in Australia, the only requirement for divorce is that the marriage has broken down and there is no reasonable likelihood of the two people getting back together. As long as this criteria is met, and there are no other legal grounds for dispute, there’s a strong chance the divorce application will be successful.
By talking to a divorce lawyer, they can assess your case, and tell you if you have legal grounds to dispute a divorce.
When to seek Legal Advice
Sometimes applying for divorce is not as straightforward as you would hope.
This is especially true if neither party has yet to agree on what will happen after the divorce. For example, how certain property and assets will be split up, who will be the primary caregiver of the children, and other relevant factors which relate to the marriage. By reaching an agreement on these details first, the process of divorce will go smoother and the outcome will be mutually beneficial.
Even if your divorce application appears to be straightforward, it’s a good idea to know of your legal rights and obligations. This will give you the confidence that you know exactly where you stand, and the kind of outcome you are entitled to receive.
Furthermore, by having a divorce lawyer take care of the paperwork and application for you, you will save time and avoid any potential stress or heartache that may come up during the process. As a result, you will have the time and space to focus on other pressing matters, and work towards a positive start for the next chapter of your life.
To request a FREE initial consultation with a qualified divorce lawyer, contact us today. One of our friendly staff will arrange a suitable day and time for your consultation.