Family Law Library

The divorce process demystified

Hi, I’m Vanessa Mathews from Mathews Family Law. Today I want to discuss a number of issues related to divorce.

I want to stress that these issues are best handled by a lawyer. I would encourage you to talk with a lawyer and to read more about these issues on our website before you take any steps on your own.

Divorce, according to Australian law, is the end of a legal marriage. That is, it’s a change in status for those in the couple. From a legal angle, it only involves those two people, not their children, not their property or the financial obligations they might have.

While all of those factors are affected by divorce, divorce itself is a fairly straightforward matter in Australia. Also, at least for now in Australia, legal divorce can only happen between a man and a woman. That’s because marriage in Australia is only legally recognized between a man and a woman.

Other couples, like same sex couples or couples who had been living together for a long time but chose not to get married, may be recognized as what’s called de facto couples. They may have many of the same rights as a married couple. But, if they choose to end their relationship they do not have to go through the process of divorce.

Divorce in Australia is no fault. This means that there doesn’t have to be a reason given for the divorce. If even one person wants to end the marriage, to get a divorce they have the legal right to end it.

There are, however, a number of conditions that need to be met before a couple can get divorced. You must be separated from each other for at least 12 months and 1 day. The court may even ask for proof that you were separated for this period of time before granting the divorce.

While generally separation means living apart from one another there are cases where a couple is considered separated even though they live in the same home. But, in this case the burden of proof is even greater, and there are a number of conditions that must be met.

So, if you are separated but living together in the same house, make sure you meet those other requirements. They include not having sexual relations, living in separate rooms, not attending social functions together, and not providing household services to each other like cooking and laundry. This shows the court that you really have ended your relationship. You can read more about this on our website.

Once you’re separated for a year and one day you can fill out an application for divorce. The application mostly asks about personal details like name, addresses, details about children, and the marriage and separation date. But, it also asks if there are other outstanding family issues in the court like property division, and this information needs to be listed.

The application must be signed in front of a lawyer, or justice of the peace, or someone else who can witness a document. Then, it’s filed with the court along with two copies and a copy of your marriage certificate. There is also a fee that you’ll need to pay when you file the application.

If you both wanted the divorce and both filled out the application then you’ll each get a copy from the court and wait for a hearing date. If only you filed the application then you have to serve the application on your spouse which means that your spouse has to get a copy of the application. Generally, a spouse is served by sending by registered mail. Your spouse can receive the application personally by hand, but you may not bring it to him or her. Someone else over the age of 18 has to serve him or her by hand.

Now, again, Austalia has no fault divorce, so if one person wants the divorce there isn’t much the other spouse can do to prevent it. But, once the other spouse has the application he or she can fight the divorce by filing what’s called a response to divorce and claiming there wasn’t a separation of 12 months and 1 day or by arguing that the particular court doesn’t have the right to hear this case. Then, the case will have to be heard by the court.

But, assuming the other partner doesn’t fight the application, you will have a hearing at the court to just verify the facts of the case. The law doesn’t require everyone to attend the hearing, but you do have to go to court if you have children under 18 and only one of you apply for the divorce. If you filed a response to divorce you should probably go to the court since the judge will want to hear from you.

Now, I want to talk a bit about what happens in court. This is often scary for people, partly because just the idea of being in court is frightening and also because of the emotional side of divorce. But, it’s just a formal procedure where the judge or the registrar reviews the application. He checks that everything written is correct. The judge might ask you or your spouse some questions, too. If you have children, the judge will also want to know that everything is arranged for them, things like where they’ll live and how they’ll be supported.

Once everything is clear to the court they’ll announce that the divorce is complete and the marriage has ended. You’ll get a divorce order from the court through the mail, and this is proof of the divorce. The divorce is actually final only one month and one day from the date of the hearing. Only at that point, one month and one day, can you remarry.

You can find the application for divorce on the Internet, but we recommend you speak to a lawyer to be sure you haven’t missed out anything and to make sure you know all of your rights. You may also like to visit our online divorce service, onlinedivorce.com.au.

Thank you for watching this video. I’m Vanessa Mathews from Mathews Family Law.