The process of Divorce is not a simple matter of filling out a form and getting on with your life.
In addition to being separated with your spouse for over 12 months, an Application of Divorce must be completed and sent to the Court. Depending on your circumstances, you may or may not need to be present at the hearing.
Although a lawyer is not necessary for this process, they can make sure that a Divorce goes smoothly and without unnecessary complications.
The following article will outline the steps involved in applying for Divorce and receiving a Divorce Order.
Are you looking at getting a Divorce? Call us on 03 9878 5222 for a free 15 minute phone consultation to discuss your options.
The steps in a Divorce
Before the court will accept an Application of Divorce, you and your partner must have been separated for more than 12 months.
Being separated does not require that you and your spouse must be living in separate houses. The law allows for ‘separation under one roof’. This is where it's possible for a couple to have completely separate lives, even if they are married and live in the same house.
Completing a Divorce Application
The first step in a Divorce is to make a Divorce Application. These papers can be completed with the help of a Lawyer, or accessed from the Family Law Court website.
You can apply for a Divorce with your spouse in a joint Divorce Application, or complete one by yourself in a sole application. Once you have completed the Application you have to send it to the Court with the Application fee. This is called 'filing' the document. The Court will stamp and return a copy to you. This is called 'sealing'the document.
If you complete a Divorce Application by yourself, then you are the sole applicant and your spouse is the respondent. Your spouse must then be served a sealed copy of the Divorce Application.
If they are served this Application by post, then an Affidavit Acknowledging Service must be sent along with the Application. They should keep the Application, but sign and return the Acknowledgement of Service, assuming they are happy to do so. You will then need to sign an Affidavit proving signature to say that you recognise the signature on the Acknowledgement of Service as being your spouse's and return all documents to the two Affidavits to the Court
Once the Application has been filed with the Court, you and your partner will both receive stamped copies which list the date of the Court hearing. The hearing is usually scheduled a couple of months after the court received the Application.
If there are no minor children of the marriage, then generally neither party will need to attend the Court hearing.
If there are children under 18, then either you or your spouse will need to attend the court hearing. This is to answer some questions about the current health and well-being of the child or children.
Order of Divorce
After the court date, the court will send out the Order of Divorce, which can take up to 4 – 8 weeks after the court hearing.
Frequently asked Questions about Divorce
How much does it cost?
You will need to pay a mandatory fee, in addition to any Lawyer's fees.
Is a Lawyer required?
No, a Lawyer is not required. Application for Divorce Kits can be accessed online from the Family Law Court website.
A Divorce can be an emotionally draining and stressful process. The most likely reason that an application for Divorce will not be accepted by the court is if the Application has not been properly completed or has not been appropriately served to the respondent.
A Lawyer guarantees that this process does not run into any complications. A Lawyer will make sure that Applications have been completed and served correctly, as well as ensure you attend the Court hearing, if required.
How long does it take?
At least a few months.
If you have already been separated for one year, or can prove 'separation under one roof', then the process of completing an Application for Divorce, receiving a Court hearing date and finally receiving the Order of Divorce can take an additional 3 – 4 months.
What happens if I want to get divorced, but my spouse does not?
You can make still make the Application for Divorce.
The Family Law Act 1975 established the principle of ‘no-fault’ Divorce. This means that no one can force you to remain married and the court does not consider why the marriage ended.
If your spouse contests the application, then you both need to attend the Court hearing. It is unlikely, however, that the court will refuse an Order of Divorce.
What happens to my property and children?
The Divorce only relates to the dissolution of marriage. It does not decide on issues regarding property or parenting.
A Property Order can occur at any time after separation. A property settlement may go through the court, but it is not necessarily required.
If there are minor children, then arrangements will have to be made for their care, and this will have to go through the Court by contest or consent.
Obtaining legal advice is always recommended when it comes to reaching agreements for financial assets or the care of children, so that you understand your legal rights and responsibilities.
You and your spouse need have been separated for over one year before the court will file your Application for Divorce.
If there are no children under the age of 18 from the relationship, and both parties sign the Divorce Application, then there is generally no need for either party to attend the court hearing. The Divorce Order will be received around 4 – 8 weeks after the court hearing.
If there are children, or a spouse wishes to contest the Application, then at least one of the parties need to attend the court hearing.
However it is rare that a Divorce Order will be refused, unless the Application was not completed correctly.
A Divorce is already complicated enough, let’s help you untangle it. Contact our friendly team and make the first step.