Key takeaways
- Separation Requirement – You must be separated for at least 12 months
- Definition of Separation – Living apart can be initiated by one spouse or both
- Application Process – Apply to the Federal Circuit and Family Court of Australia.
- Children Arrangements – A divorce order does not dictate parenting arrangements
- Property Arrangements – Property orders can be applied for before or after a divorce
- Divorce Timeline – A divorce order typically takes effect one month and one day after the court’s order
How can I get divorced?
So, what do you need to do to get divorced in Australia? First, you must have been separated from your spouse for at least 12 months. However, you and your spouse must also both be Australian citizens. Alternatively, you must both live in Australia and see Australia as your permanent home or usually live in Australia and live in Australia for at least 12 months before your divorce application.
What if you married overseas? You can still apply for a divorce in Australia as long as you meet the above criteria. However, if you’ve been married for less than two years, you’ll need to attend counselling with a family counsellor. You’ll also need to file a counselling certificate, though you can get permission from the court to apply for divorce without this certificate.
Research shows that the average cost of a divorce in Australia is around $21,000, and in cases where the matter goes to court, costs can range between $50,000 and $100,000. Costs include filing fees, legal fees and other related expenses. For example, the fee for the divorce application form is $1,100, while the cost of a decree of nullity is $1,560 and paying for legal advice and mediation can quickly get expensive. However, you may qualify for a reduced divorce fee of $365 if you have a government-issued Concession Card, like a Health Care Card or Pensioner Concession Card, receive legal aid or are experiencing financial hardship. Find out more about these fees on the Family Court website.
During the settlement process, it’s important to get good legal advice whether you apply for divorce alone or jointly. Many people don’t have the cash available to pay for legal fees or may be suffering from coercive control and under severe financial stress. In many of these cases, JustFund may be able to assist with flexible payment options. JustFund is a non-traditional lender that doesn’t worry about credit checks or income to approve funding. We work with family lawyers around Australia in partnership to help cover costs for filing for divorce and other legal fees during the separation process so you can focus on getting the best outcome possible. If you want to know more about our funding, apply now here.
What is separation?
Separation simply means living apart from your spouse. One spouse can initiate separation, or both people can decide on doing it. Being separated for at least 12 months is proof that your marriage is ‘irretrievably broken down’. However, you can still get ‘separated under one roof’ if you meet certain criteria. ‘Separated under one roof’ means you do intend to end the relationship, but are still living together. You might inform family and friends of your separation, and change legal documentation, parenting arrangements, and have separate bedrooms and meals as evidence of your separation.
That said, getting good legal advice is vital if you want to be separated under one roof.
Why do we have to wait for 12 months?
Spouses must wait 12 months before applying for divorce under the Family Law Act. The idea of this Act is that waiting 12 months gives you both the time you need to weigh up the final decision of divorcing. The important thing during this time is being aware of what you are agreeing to informally. If you don’t understand what you are agreeing to, you could end up legally compromised when you divorce. This is why specialist legal advice is so important.
How do I apply for divorce in Australia?
You must apply to the Federal Circuit and Family Court of Australia to apply for divorce in Australia. You must apply to the Family Court of Western Australia if you reside in Western Australia. You can visit the family law court websites to find fact sheets, application kits, and other information to guide you through the process. You can even actually begin to apply for a divorce online.
If you apply together, this is called a joint application, whereas if one person applies for divorce, this is a sole application. Depending on whether the divorce application is joint or sole, as well as whether you have children under 18, you may need to go to court.
Of course, you will be responsible for certain fees when applying for a divorce. But we can work with your family lawyer to help you with a payment plan for these expenses. If you want to know more about the current fees, you can find this information on the family law court websites and check out our blog post.
How does a divorce order affect children?
A divorce order does not include parenting arrangements. If your children are below the age of 18, the courts will only grant a divorce if they are sure that proper arrangements have been made for their lives. Visit the Children and Family Law page for more information on arranging the care of your children after a relationship breakdown.
How does a divorce affect my property?
A divorce order also does not include property arrangements. However, you can apply for property orders before your divorce is final. You can even apply to court for property orders after your divorce is final, but it must be within 12 months. We recommend you get legal advice to ensure you get a fair, equitable share of the property pool. If you need financial assistance for legal fees, JustFund can offer you flexible funding solutions for family law, including property settlement. Check out our financial management tips, and or review the Australian government money and property page to learn more about how to divide your property and money after divorce.
What is the time frame for a divorce?
How long can you expect a divorce to take? You might think that once you’ve filed the paperwork and the 12 months of separation are up, your divorce should go through immediately, but it’s not so simple. That being said, in the vast majority of cases, a divorce order will take effect one month and one day after the court makes the order. It’s still possible that the court won’t make the order at the first hearing because they need more information from you. This information could be evidence of the date of separation, evidence of counselling (for people who have been married for less than 2 years), or other paperwork. If you go to court, getting divorced could take over 3 years.
If you get good legal advice, this can help expedite the process of your divorce.
What can I do during the 12 months?
Since you’re waiting 12 months for the divorce to go through, what can you do during these 12 months to make the divorce process more straightforward in the end?
It is only the divorce that you need to wait 12 months for. You can get started with everything else as soon as you want to. For example, you can start on your property settlement as soon as you separate. You can also begin your formalised parenting arrangements if necessary.
You should also consider how you will pay for the divorce. Often, an asset pool depletes during the separation process from extra rent or lawyers fees placing extra financial stress on both parties. Sometimes, the ramifications of selling your assets, legal fees, and other unforeseen expenses make the divorce process more complicated than necessary. Reach out to JustFund to see if we can help support your legal journey by providing funding to maximise your chance at an equitable outcome for you and your family.
Conclusion
Getting divorced can be stressful, challenging, and expensive. You can come across a lot of confusing information out there. But you don’t have to do it alone. Make sure you get access to quality legal advice and seek financial empowerment via flexible funding solutions. Visit us at JustFund.com.au for more information and to find out if you are eligible for funding. Contact us today to find out what we can do for you.
