Divorce Lawyers Sydney: Marriage Separation Law Experts
Last Update November 28th, 2016 Going through a divorce can be incredibly stressful and tough on the whole family. It is so easy to be caught up in the whirlwind of emotions that often you can forget the important practical and legal issues that can often have a long-term impact.
Our team of experienced divorce lawyers in Sydney are trained in dispute resolution. Each of our partnered family law firms has the skills to help both parties come to an agreement regarding the issues such as division of property, assets and parenting arrangements.
Our professional family lawyers can help you come to a settlement without the need of expensive litigation. However, if the divorce proceedings don’t settle, our family law team are experienced at moving matters through the family law court quickly, professionally and with the utmost discretion.
Divorce can often be a confusing time. We have put together a divorce guide to answer any questions you may have around divorce.
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Divorce In Australia: Our Divorce Guide
Table Of Contents
What Is Divorce?
Divorce means to formally end a marriage. In Australia, we implement a “no fault” divorce system. This means that it is not necessary to prove a wrongful action or circumstance in order to obtain a divorce. The only basis for a divorce is to prove that there has been an irretrievable breakdown of the marriage, which was introduced with the Family Law Act in 1975.
Applying for a divorce is legally separate to the processes of property settlement, child custody, child support and spouse maintenance.
Obtaining a divorce is not required to finalise a property settlement or determining who a child stays with. These separate family law matters can be dealt with as soon as separation occurs. However, in a divorce, the family law court must be satisfied that the care and welfare of the children of a marriage under the age of 18 have been taken care of.
Who Can Apply For A Divorce?
Either you or your spouse may initiate a divorce. Alternatively, you can both choose to submit a joint application for divorce.
If one person applies for the divorce, they will have to pay for it, while the other part will only need to sign the relevant forms when personally serviced with the divorce to acknowledge the receipt of the documents. If you choose to submit a joint application then the costs are shared between both parties.
How Long Must I Be Separated Before Applying For A Divorce?
Married couples must have been separated for a period of 12 months before applying for a divorce.
If your spouse is overseas, it is still possible to obtain a divorce in Australia. Also, under certain circumstances, you can also be considered separated, even if you are still living in the same residence as your spouse.
There are many other conditions and limits when applying for a divorce. Our top divorce lawyers in Sydney have the expertise to inform and advise you around such matters.
Preparing For A Divorce
Separation can often be an emotional and stressful time for everyone involved. There are a number of practical things you can do around the time of separation that can make the process a lot easier.
Keep Open Lines Of Communication
Even though you and your partner are separating, it is important to make sure you keep in contact. This will help deal with things that arise throughout the process, and might help you resolve some of the bigger issues concerning children and property more easily.
Collect Relevant Financial Information
During a separation, it is common for one partner to change passwords on a computer or to move all paperwork from the house. Obtaining copies of the important information together sooner rather than later, can help in the long run, and save you having to chase down this information at a later stage.
Don’t Move Out Of Home Without Getting Advice
Unless you fear for you or your children safety, they is no legal advantages by remaining in the home. However, there can often be practical consequences when a partner leaves the home. Often the remaining partner can feel a sense of control over the home. Their comfort and familiarity with the home can cause a delay in reaching a property settlement.
List All House Hold Items
Often during divorce, there can be some very heated and emotional disputes over personal belongings. Create a list at the time of separation that includes details of all the important items. This list can help reduce the length or intensity of any dispute.
Check Who’s Name Utilities & Expenses Are Held In
If the utilities and expenses are not in your name, then your former partner could be a nuisance and cancel the service on you. If it is in your name, you may expect your partner to pay the costs if they are occupying the property. If they don’t you could potentially end up with a mark against your credit rating for unpaid bills.
Check Who Is The Primary Holder Of Any Health Insurance
If you are not the primary holder of your health insurance, then your former partner could potentially remove your from the health insurance without notification. Obviously this could lead to problems in an emergency. It could also impact any future discounts or incentives you may have been eligible to receive from the government or health insurance provider.
Avoid Listing Assets For Sale
Avoid listing assets such as the family home, or car for sale, and entering intro contracts for their sale until you have received legal advice. If you do not have property legal arrangements when selling items then it is possible that your former partner could take more than what they are entitled to. Recovering that amount can prove more difficult and expensive than it would have been if you had originally had arrangements in place before the sale.
Contact Centrelink and notify them of your change in situation. You may be entitled to receive some government benefits.
Change Postal Address
Consider changing your postal address, even if you remain living in the home, for important mail. That way, your former partner wants to be a nuisance on you, they will not have access to your private mail.
Update Your Will
Update, or prepare, your will. Any existing will is likely to list your former spouse as a beneficiary and possibly also give them control as an executor. Change this as soon as possible.
How To Get A Divorce: The Divorce Process
The Date Of separation
In most cases, separation occurs when either yourself or your spouse decides that the marriage is over and communicates to the other person.
In Australia, in order to apply for a divorce, you must have been separated for at least 12 months. If you have been living under the same room during that time, or you have been married for less than two years,you should first seek legal advice as there are addition requirements you must meet.
File The Application For Divorce
If you wish to file for a divorce in Australia, you can choose to do this by yourself or make a joint application with your former spouse
When making an application for a divorce, you will need to file a number of documents with the Federal Circuit Court Of Australia. These documents will include an Application for Divorce form and your Marriage Certificate. When you file your Application, you will be charged a Court filing fee and your Application for Divorce will be listed in Court for a hearing.
There are certain criteria (referred to as jurisdictional requirements) that must be met when applying for a divorce. This can include details regarding your Australian Citizenship if you were not born in Australia. You lawyer will be able to help you if you have any further questions regarding your Application for Divorce.
Divorce Application Served
If you have not filed a joint application for divorce with your former spouse, then a copy of the Application For Divorce must be served to the other party.
This can be done personally by anyone over the age of eighteen. It can not be done by the Applicant. The person who served the document is required to fill out an Affidavit of Service.
If you cannot have someone personally serve the Application For Divorce, then it is possible to serve the documents via post. This is only if the other party is prepared to sign the document acknowledging that they have received Application For Divorce.
If the other party resides in Australia, then the documents must be serviced at least twenty-eight days before the court hearing date. If the other party resides outside of Australia then the documents must be served at least forty-eight days before the court hearing date.
In most cases it will not be necessary for you to attend Court unless you wish to. Alternatively, our lawyers can attend court on the hearing date and represent you at the hearing.
If you choose to attend Court for your hearing is a good to know what to expect. Your divorce Application will be one of many being heard by the Court that day.
When you first arrive at the Court, tell the Court officer you name and they will note your attendance. Enter the Court and take a seat. The Court officer will call your name when your matter is to be heard.
The Divorce hearing will generally be brief. During the hearing, the Registrar with ask you a number of questions regarding the information included in your Application. If you have young children, the Registrar may ask about the arrangements you have for the children.
If the Court is satisfied that you have met the requirements, a Divorce Order will be pronounced. The Divorce Order is a provisional decree that means you divorce you become final after a month.
Divorce Order Takes Effect
After one month since the Divorce Order is pronounced, the divorce order usual comes absolute. This means you divorce has become final, your marriage is dissolved and you are free to remarry if you wish. The Court will issue you a Certificate Of Divorce upon your divorce becoming final.
- Separation To Divorce Application (12 months)
- Divorce To Hearing Date (6-8 Weeks)
- Hearing Date To Marriage Disolved (1 Month)
Serving Divorce Papers
In this video, we outline the process to serving divorce papers to your former partner.
This step-by-step guide to serving divorce papers in Australia outlines what documents will need to be served to your former spouse and any legal obligations you may have.
Requirements For Obtaining A Divorce In Australia
To be eligible to apply for a divorce in Australia, your or your spouse must fit one of these requirements
- You are an Australian citizen by birth or decent.
- You are an Australia citizen by front of Australian Citizenship.
- You have lived in Australia continually for at least 12 months immediately prior to filing for divorce.
- You are lawfully present in Australia and intent to continue living in Australia.
Separated For 12 Months
Married couples must have been separated for a period of 12 months before applying for a divorce.
Have A Marriage Certificate
You can provide a certificate obtained from Births, Deaths, and Marriages, or your wedding certificate. If you were not married in Australia and your marriage certificate is not in English, you must have the certificate translated. You must include both the original and the translation with an Affidavit of Translation of Marriage Certificate from the translator.
The Marriage Has Broken Down & There's No Likelihood That You Will Get Back Together
This information will be required on the Divorce Application. If you choose to apply on your own, you should not refer to the intentions of you spouse unless you can provide proof of what your spouse’s intention was at the time. You should be prepared to provide this information at court. You may be require to show what happen or what was said on the date of separation to show that one or both of you intended to end the marriage.
Married Less Than Two Years?
If you have been married for less than two years then you will need to obtain a counselling certificate. In order to obtain a certificate you will need to attend counselling with your spouse. If you cannot attended counselling you will need to file an affidavit.
Lived With Your Former Partner The Last 12 Months?
Are you separated but have been living under the same roof as your former partner within the 12 months prior to filing out your divorce application? You will need to provide extra evidence, by preparing and filing an affidavit, to prove that there has been a change in the marriage. If you and your former spouse are filing a joint application then both of you should file an affidavit. In these cases you should ask a third person, to file an affidavit. Our lawyers can help you through this process.
Arrangements For Children In Divorce Law
In order for a divorce to be granted in Australia, the court must be satisfied that appropriate arrangements for children are in place. At the time of the divorce hearing, the children must be shown to be appropriately cared and provided for.
These child care arrangements don’t need to be formal however they do need to meet particular criteria. These criteria includes:
- That any child is provided with housing, schooling (or appropriate care arrangements if they are not at school) and care before and after school.
- The health of the children will also be considered as well as the grade and progress of the child at school.
- The child must have contact with both the mother and father after the separation. If there is no contact then it should be explained why.
- There should be financial support from both the mother and father. If one party is not providing financial support, then it should be explained why.
For more information on children in marriage, we have provided further detailed information and advice on Australian child custody.
Frequently Asked Questions
What Do I Do If I Can't Locate My Spouse?
Every effort should be made to find your spouse. If you still can’t find your spouse you will need to tell the judge in writing exactly what you did to find your spouse and the responses you received. When you are searching for your spouse, keep a list of all the places you contacted and what you did or didn’t find out. If you send out or receive documents, make sure that you keep copies. Make sure you save any undelivered mail that is returned to you.
From when you file your divorce, you have 60 days to serve your spouse. If you cannot find your spouse within that time you can go back to the Family Court Central Intake Centre before the 60 days are up. You can request a new Summons allow you to get an additional 60 days.
If you still need more time, you will have to file a written request for more time and the judge will have to approve it. If you have your first court hearing before the 60 days is up, you can ask the judge for more time at the hearing.
If the application for divorce cannot be served, and the judge decides that you have made sufficient efforts to find your spouse you can get permission from the court to publish a notice of the divorce in the newspaper or in the courthouse. This is known as a Motion to Serve by Publication or Posting.
These requirements may change from case to case. Our specialist divorce lawyers can help you navigate through these circumstances.
What If My Current Name Is Now Different From My Married Or Maiden Name?
If you have changed your name from your married or maiden name, then you will need to file an affidavit outlining why there is a difference in names.
Do I Have To Attend Court?
In most cases, you will not need to attend your Divorce Hearing. However, there are some circumstances that require for you to be at your Divorce Hearing or have a lawyer be there for you.
You must attend your hearing if:
- You have filed a sole application and there is a child of the marriage aged under eighteen years at the time of filing.
- You have filed a Response to Divorce. If you don’t attend it may be granted in your absence.
In some circumstances you can apply to attend the Divorce Hearing via telephone.