We know the end of a relationship is difficult, no matter what the reason for separating. We rarely see clients who find it easy, even when spouses are amicable and come to a mutual decision to end the marriage.
We want to make this as easy as possible. Separating may seem like a legal maze, but we aim to break down this process into a step by step guide to make it easier to navigate, particularly if this is your first time you have gone through a separation and divorce.
What is Divorce?
You may be surprised to learn that divorce application doesn’t have an impact on arrangements for their children, nor does it cause your property division to take place.
Applying for a Divorce will result in the marriage being brought to an end, but you will still have to make separate arrangements for parenting and property. We will deal with those topics below.
A divorce can be granted where the Court is satisfied that;
1. There was a valid marriage;
2. The parties have been separated for 12 months (this can include 'separated under one roof’); and
3. If there are any children under 18 years of age, there are arrangements for their care.
How to apply for a divorce
An Application for Divorce is made online.
1. Start by creating a free account with the Commonwealth Court Portal – https://www.comcourts.gov.au.
2. Once your account is set up, login and select the option for ‘file a new application’. You will be promoted to input information into the site which will generate your draft Application form. You can elect to file an application on your own behalf (a “sole” application) or on behalf of both parties (a “joint” application).
3. Upload your marriage certificate and other necessary documents to the Court file. If you don't have your marriage certificate, often you can order a replacements from the Registry of Births, Deaths and Marriages in the State you were married. You may also need to upload translations of your marriage certificate, citizenship certificates, affidavits explaining that you and your spouse were separated even though you were still living in the same residence here too.
4. The completed form must be “locked" then you will be able to view and print out the final version of your Application form, plus an “Affidavit of eFiling”. This must be signed in front of a solicitor or Justice of the Peace, either by you or both of you depending whether it’s a sole or joint application. The signed form should be scanned and can be easily uploaded into the Court portal page.
5. The next stage is to make payment of the filing fee by credit card. You may be entitled to a fee reduction if you have a pension or health care card or meet the other criteria. (see https://www.fcfcoa.gov.au/fl/forms/app-reduction-divorce-nullity-gen )
You will be asked to select the date of your hearing from the Court calendar.
Service
Once the Application is filed in Court, if you are making a sole application, the divorce application and other documents must be served on the other party. See the Court’s site for more information: https://www.fcfcoa.gov.au/hdi/serve-divorce
If you have filed a joint application, you do not need to serve the other party.
The Hearing
If it is necessary for you to attend the hearing (i.e. where you have filed a sole application and there is a child/ren under 18 years, there has been an objection lodged or response filed or you need Orders regarding service), then the Court hearing should be conducted by telephone. The Court will provide you with the details about how to attend the hearing by telephone shortly before the hearing.
If there is anything missing or further information is required, the Court may write to you in advance of the hearing to give you an opportunity to fix or provide the necessary information before the hearing.
If the Court is satisfied of the 3 things set out above, the Court will pronounce the divorce be granted. However, THIS IS NOT THE FINAL DIVORCE.
The Court will wait a month and a day and if no application is made in that time, then it will grant your final divorce order.
The Divorce Order
The Divorce Order will be dated the day of the Court hearing, however it will state in the Order what day it came into effect.
The Order will be published to the Court file only (there is no hard copy) then you can simply download a copy from the Court portal.
Effect of the Order and time limits
The marriage will now be at an end. You are both free to remarry.
The Order will also start a time limit in which to apply for property division from the Court. The time limit is 12 months after your divorce was pronounced to be final.
This means if you do not formalise an agreement about property settlement in a legally binding way, either by Consent Orders of a Financial Agreement, then either of you can apply to the Court for Orders adjusting the property rights between you.
Divorce can also invalidate parts of a will (see below).
Changing names
The divorce will not change a surname.
Women can continue to use the married name or change their name. Women can revert to using a maiden name at any time, irrespective of whether there has been a divorce or not (women never lost the ability to use a maiden name, even when they married).
Property division (“Property settlement”)
You can divide your property up either before your divorce or up to 12 months after your divorce.
Ideally you can reach an agreement about how to divide all of the assets, superannuation and debts between you, either through negotiation directly with your former spouse, through lawyers or by using a mediator.
If you have an agreement, this can be formalised in a legally binding way either by a Consent Order or Financial Agreement. See out website articles for more information.
If you do not reach an agreement, you must make a separate application to the Court for orders specifically about property settlement. This is a completely separate application process to your divorce application (or a Financial Agreement is a contract outside of Court).
Children’s arrangements
You can also look to settle the arrangements for your children before or after your divorce.
Similar to property settlement, you can try to reach an agreement about parenting matters by negotiation directly with the other parent or by negotiation. You can have the agreement remain simply a parenting plan between you, or you can formalise it in a legally binding way as a Consent Order. See our articles about parenting matters.
There is no time limit to apply to Court for Orders about your children. If no agreement is reached and you have attempted mediation (or are eligible for an exemption) then you might like to see a lawyer about applying to Court.
Like property settlement, this is a separate legal process to your application for divorce.
Wills & estate planning and insurance policies
After your divorce, we strongly recommend you review any Will or Power of Attorney you may have and update it if the documents no longer reflect your wishes for you affairs in the event that you pass away or lose capacity.
Binding superannuation nominations should also be reviewed and updated, if necessary.
If you have any life insurance or other policies which may provide funds in the event of your death, you should also review and update the beneficiaries of those policies if necessary.
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