What's the process for divorce?

Published 29 Jul 2019

In order to get divorced, you have to apply to the Federal Circuit Court. You must demonstrate that your marriage has broken down and that you're eligible to be granted a divorce in Australia.

The process of getting divorced

The first stage of divorce is formal separation. You will have to prove to the Federal Circuit Court that you've been separated from your spouse for more than 12 months and that there is no chance you will be continuing your marriage. This constitutes an irretrievable break down of your relationship.

Your 12-month separation begins from the day you or your partner communicate to the other that the marriage is over. You can still apply for divorce if you live together during your separation, but must prove you and your spouse live different lives. Many people do this by asking a friend or family member to provide an affidavit confirming the situation.

Once you've been separated for a period of 12 months, you complete an application for divorce form. You file your application, including any relevant affidavits, a copy of your marriage certificate and your passport or proof of citizenship to the Family Law Courts, and pay the associated fee.

If you make a sole application for divorce, you'll receive two copies of your paperwork, a brochure detailing the divorce process and your court hearing date. You must serve these documents to your spouse either by post or in person via a friend. This must happen at least 28 days prior to your hearing date. You should also provide proof that you provided your spouse with the relevant paperwork, either via a signed Acknowledgement of Service form, or an affidavit from the person who delivered your papers.

This process is not necessary if you and your spouse make a joint application.

The court's role in divorce

If you and your spouse do not have children together, you do not have to go to the court hearing. Where you have children under 18 years of age, you do need to attend.

The most straightforward outcome is that the Court grants your divorce straight away. However, they may adjourn your case if they need more information, or refuse to finalise arrangements until they are happy with the care arrangements for your children. On the occasion the Court does not find there are grounds for divorce, they can refuse your application.

Typically, when a divorce is granted it becomes final one calendar month later.

If you're about to begin divorce proceedings, talk to the experts at Malouf Solicitors.

Please call us on 02 8833 2000 to speak with a lawyer

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