How do I get a divorce?
Firstly, it is important to understand there is a difference between a divorce, a property settlement and parenting arrangements. All three areas are unique to each family and are often dealt with at separate times.
Divorce is the term used where a couple are legally married and no longer wish to be legally married to each other.
Time limits for Divorce are important and you should seek specific advice for your circumstances. Important time frames include:-
- Divorce can only be applied for after parties have been separated for 12 months and 1 day;
- Once a divorce has been granted through the Australian Courts, parties have only 12 months to finalise any outstanding property matters;
- Special rules apply to couples who have been married for less than 2 years when initiating their Divorce Application.
How do I complete the Application for Divorce?
The Application for Divorce requires various information including:-
- The names and dates of birth of each party;
- Critical dates of your relationship such as when you commenced living together, your date of marriage and your date of separation;
- Where there are children under the age of 18, their full names, dates of birth and details for the living and care arrangements for each of the children;
- If a property settlement has already been finalised, then a copy of the property settlement document (ie Financial Agreement or Orders of the Court) is required to be attached;
- If there is a Domestic Violence Order, then a copy must be attached.
A copy of the Application for Divorce Kit can be viewed using this link
Does my Husband or Wife have to agree to the Divorce or sign the Application?
Some couples agree to get divorced. Where this is the case, the parties can apply jointly simply by crossing the box that the application is a joint application and by both parties completing and signing the form prior to it being filed in the Registry.
Where one party is seeking to legally end the marriage and apply for the divorce but the other party may not want to join with them, then the Application is made solely by one party. The other party need not sign the Application but once filed, a copy of the Application must be “served” on the other party so they are aware that the Divorce has been applied for and they are aware of the date the Application will be heard.
Does my Husband or Wife have to know I am applying for a Divorce?
Yes. If you are applying for the Divorce solely, then once the Application has been filed, you will need to make arrangements with a process server to serve the other party with a copy of the Divorce along with the necessary brochures which are required under the Rules. The Divorce Kit (link already provided) details the process for the service of the Application on the other party.
How long will the Divorce Process take?
The Divorce process could take up to 4 – 5 months, depending on time delays with the Registry of the Court. Once the Application is filed, you will be notified of the date, time and place of the hearing. The information will be contained on the first page in the top right-hand corner of the filed Application. For example Brisbane Registry, 10 May 2016 at 10.15am.
Once the Divorce hearing takes place and the Divorce is granted by the Court, the Divorce becomes final 1 month and 1 day after the hearing. You will receive a Certificate of Divorce from the Court after that date (or it can be downloaded from the Commonwealth law Court Portal if you have access). https://www.comcourts.gov.au
Do I need a lawyer?
Some parties take advantage of the on-line Application and act for themselves. Many parties use lawyers to assist them to prepare, file, serve and appear at the Court for the hearing to ensure the documents are prepared correctly, service is effected properly and the matter is finalised without delay.
Our lawyers at McLaughlins are always happy to assist with questions about divorce and other related family and relationship law matters. Please contact our team on (07) 5591 5099.
Author: Sophie Pearson (Partner)