Frequently Asked Questions
You need to check the relevant legislation in your State and Territory, as the rules are different in each jurisdiction.
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Do we need to register our separation?
- There is no legal requirement to register your separation.
- There are no forms to fill in and you do not need to apply to the court.
- It is a still a good idea to record the date of this decision. Also record the date on which you informed your ex-partner and how you told them.
- This is particularly important if the other person may not agree with your dates down the track.
- If possible you should get the other person to confirm the date of separation in writing.
- If that is not possible you could send your ex-partner a text or email confirming the date of separation and keep it a copy.
- If there is a dispute about when you separated then it will be up to the court to decide when and if this happened. To do this the court will look at a range of different information from both people and from witnesses if relevant.
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Does the date of separation really matter?
- The date of separation is important whether you were married or in a de-facto relationship. The date of separation impacts upon a number of things including:
- when you can file for a divorce;
- the time in which you can claim property settlement; or
- the time from which your spousal maintenance and possibly child support obligations start to run.
- If the date of separation is disputed then this is a fact that will need to be proved in court. The court will consider the evidence before it makes a decision.
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How do I apply for a divorce?
- You can get help from a lawyer or you can apply for a divorce yourself by using a divorce kit.
- You first need to check that you meet the requirements for getting a divorce in Australia.
- Then you will need to file all the forms and supporting documents with the court registry.
- If there are children under 18 years of age you need to attend court for your hearing date.
- The court will then decide about your divorce application.
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How do you go about serving (giving) a divorce application to the other party?
- There are rules that deal with this issue.
- If you are doing a joint application then you do not need to serve the papers but be prepared to demonstrate that both parties know the date of hearing.
- If you are doing a sole application then you must serve the divorce papers on the other person.
- There are rules and timeframes about when you must do this. The registry staff can assist you when you file your documents at the court or alternatively information is available on the Family Court website or in the divorce kit.
- You need to provide the court with proof of service. This is done in an affidavit (a written document that you have sworn in front of a qualified witness). You can serve by post or by hand (personal service).
- The other person needs to sign an Acknowledgement of Service document and return it to you.
- There is also the option of using a professional process server. You need to pay a fee to the professional server to engage their services.
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Can we apply for a divorce if we have been married for less than 2 years?
- If you have been married for less than 2 years then you and your ex-partner must go to a counsellor to discuss the possibility of reconciliation.
- The counsellor must be an approved counsellor that can issue the certificate that will need to be given to the court as part of your application for divorce.
- The time you have been married is calculated from the date on your marriage certificate.
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Can one person oppose an application for divorce?
- Yes. You do this by filing a ‘response’ to the application.
- You can state the reasons that you are opposing the divorce and provide evidence to support your position.
- Both you and your spouse will need to attend court on the hearing date with or without legal representation.
- The court will then consider the evidence of both parties at the hearing date.
- It may make an order on this day or it may allocate more time on another day to consider the case.
- Remember that Australian divorce law is a ‘no fault’ system of law. This means that the court is not interested in why the relationship broke down or whether or not both people want a divorce. It will simply consider the application against the requirements for granting a divorce under the law.
- You may like to get legal advice about the strength of your case. A lawyer will also tell you what factors the court will take into account when deciding whether to grant the order for divorce. You can use our Phone a Lawyer service to get a preliminary consultation about your situation.
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How long will it take for my divorce to be finalised?
- When you file your application for divorce it usually takes about 15 weeks for the court to make the order.
- You will get a hearing date when you file.
- You can check with your registry as the timing really depends on how busy court is.
- It then takes one month and one day from the date of the grant before the divorce will take effect. You are not divorced until this time has passed.
- When the divorce is final then the court will post a sealed copy of the Divorce Order to you.
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We were married overseas. Can we get a divorce in Australia?
- It does not matter if you were married overseas. You can apply for a divorce in Australia. You only need to satisfy the requirements under the law.
- The major difference in these situations is ensuring that proof of your marriage is acceptable to the court and in the correct form.
- If it is written in a language other than English then you will need to have your overseas marriage certificate translated into English.
- The translator will need to sign an affidavit:
- detailing their qualifications in translation; and
- confirming that the document is an accurate translation of the original.
- Both these documents will need to be included in your divorce application.
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Which court do I go to get a divorce?
- The Federal Circuit Court of Australia deals with all divorce cases in Australia.
- There are divorce list days when the court deals with a large number of divorce applications. Usually a registrar will deal with your divorce application.
- There is a Federal Circuit Court registry in all capital cities. This is where you can file your divorce application.
- Divorce forms, information and kits are available from the Federal Circuit Court website: http://www.federalcircuitcourt.gov.au/forms/html/divorce.html.
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What other issues need to be addressed after a separation or divorce?
- Formalising your separation with a divorce is an important task that needs to be completed if you wish to remarry in the future.
- You also need to make decisions about:
- children;
- finances including income and expenses;
- assets and liabilities; and
- living arrangements.
- Coming to an agreement about these issues without needing to go to court is ideal but often this is not possible.
- If you cannot agree then applications can be made to the court to finalise arrangements about these matters. Remember you will need to go to specialised mediation known as family dispute resolution before your case can go to court on a parenting issue.
- Even if you can come to an agreement you may want to have a formal document drafted to reflect the agreement. There are different ways that you can do this. A lawyer is the best person to provide you with advice about your rights, responsibilities and the pros and cons of each option. Our free Find a Lawyer directory may help put you in touch with the assistance you need.
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Is there a deadline for applying for a property settlement or for spousal maintenance with the court?
- If you were married you must apply within 12 months from the date that the divorce takes effect.
- If you were in a de-facto relationship you must apply within 2 years from the date of separation.
- If you are outside these timeframes then you should speak to a lawyer. There are some special circumstances when you can apply outside these timeframes. If you have any concerns you can use our free and anonymous Ask a Lawyer service to get information specific to your situation.
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Can an appeal be lodged after a divorce order is made?
- There is a general right of appeal against orders made by the court.
- In this situation you can apply for a review before the divorce is finalised.
- This means within the one month and one day period after the divorce order was made.
- You cannot apply for a review after the divorce has become final.
- If you want to appeal the decision of the court you should immediately get legal advice to ensure you have grounds for appeal. It is important that you understand the timeframes, deadlines and get some advice about the strength of your application for review or appeal.
- You can use our LegalPlan™ membership to call for Fixed Fee Quote from experienced lawyers who may be able to assist you with this.
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