In Australia, how long does it take to get a divorce granted? Many people considering divorce or separation often ponder this very subject, whether it is because they wish to move on with their lives or for any other reason.
Among the objectives of this article are to offer a general understanding of the subject of ‘How long does it take to get a divorce in Australia?’, as well as some specifics on matters that are directly linked to the question.
At the moment, and generally speaking, it takes a few months to finalize a divorce case in most cases. This timeframe begins with the filing of your initial application with the court and ends with the issuance of a Divorce Order by the court.
However, if there are any procedural complications, such as being unable to identify and/or serve your spouse with a copy of the divorce application, the procedure might take much longer to complete than expected.
However, this estimate does not include the time required to prepare and file an application for divorce, as well as the time required to sign the application itself, which is not included in this estimate.
At Mediations Australia, we can assist you with your divorce concerns, including Online Divorce.
In order to avoid this, you should never plan to remarry until you have ensured that you have given yourself enough time to complete your divorce and that you have gotten your Divorce Order from the court. In Australia, it is unlawful to remarry before a divorce decree has been issued by a court of competent jurisdiction.
In Australia, How long do you have to be separated from your partner before you can File for Divorce?
According to Australian law, you and your partner must be legally separated for a period of 12 months before you may file for divorce together.
Separation happens when one party informs the other that the relationship has come to an end, and both parties take action in response to that communication.
However, physical separation is not required and in and of itself does not terminate a marital connection; rather, it is the departure from a condition of affairs that is determinative of separation, rather than being physically separated from a person or a location, as is the case in most cases (e.g. the former matrimonial home).
Is it necessary to wait two years before filing for Divorce?
If you and your former spouse have been married for less than two years, you may still be able to file a divorce application with the appropriate court. You will, however, almost always be required to undergo counseling and submit a counseling certificate along with your divorce application.
If you are unable to attend counseling with your husband, you will be required to write an affidavit stating your reasons for not being able to do so. You will need to describe the actions you have made to locate your spouse, for example, if you haven’t attended therapy due to the fact that you haven’t been able to locate them. You may also be asked to explain why you think that attending counseling with your husband is not safe or acceptable if there has been a history of domestic violence in the marriage.
Applying for a Divorce
For the first time since 1975, when it comes to divorce, Australia has been a ‘no fault’ jurisdiction. The sole conditions that must be met in order for the Court to give a Divorce Order are as follows:
- For at least 12 months, you and your husband have been separated (although, as previously stated, it is conceivable to be separated while still physically living together under the same roof);
- You or your spouse are an Australian citizen or resident, and you or your spouse consider Australia to be your permanent home.
- There has been an “irretrievable collapse” of the marriage (i.e. that reconciliation is no longer conceivable).
More information here on how to get divorce:
Application on its own or joint applications
When filing for divorce, you can do it on your own (this is known as “sole application”) or you can do so in conjunction with your spouse (this is known as “joint application” or “joint petition”).
If you and your spouse file a joint divorce application, or if you and your spouse have no children under the age of 18 at the time of filing the application (either individually or jointly), you will not be obliged to appear at the divorce hearing.
But if you file for divorce on your own, and there is a child (or children) from the marriage who is under the age of 18, you will be compelled to be in person at the divorce proceeding.
This is due to the fact that the court must be convinced that either:
- If there are any children from the marriage who are under the age of eighteen, proper arrangements have been made for them;
- There are exceptional situations in which a divorce should be granted despite the fact that suitable plans have not been made.
Following the Filing of Divorce Papers, How long does it take to finalize the Divorce?
All divorces will subsequently be finalized one month and one day after the date on which the divorce was granted. This is the time period during which the court issues the Divorce Order (this was previously known as a Certificate of Divorce).
Can divorce procedures be held up?
If everything goes according to plan throughout this procedure, your divorce should be finalized within a few months, depending on how long it takes to secure a hearing date from the court.
Although there are various places in the process when delays might occur, there are a few that are particularly noteworthy. For example, if you submit a solitary application for divorce, it is possible that delays will occur as a result of your efforts to locate and serve the papers on your former spouse.
The same is true if there are issues with the documentation or if you haven’t followed the appropriate procedural steps, the court will reschedule your hearing to a later date, which will result in a significant delay. As an added issue, delays might be made if the court is dissatisfied with the arrangement that has been reached to safeguard the child/children.
Are there Time Constraints?
The process of filing for divorce is not time-limited, and you do not have to wait for your divorce decree to be finalized before obtaining a property settlement or establishing custody and visitation arrangements for your children.
You will, however, have a 12-month time following the finalization of your divorce order in which to file an application with the court for a property settlement and/or spousal support in the event that you and your partner are unable to reach an agreement on your own.
The right to file an application in court without first requesting leave to continue out of time will be permanently lost if you do not file an application before the limitation period expires. You may not be successful if you file an application after the limitation period expires.
How long do you think we’ll have to be apart?
Before you may file for divorce in the Federal Circuit Court, you must have been separated for a year before filing. For example, if you separated on April 3, 2020, you will not be able to submit your application until April 4, 2021.
Is it possible for us to be divided within one roof?
Yes. You may be required to provide more material to the Court in order to prove that you were in fact separated. Do you know if your relatives and friends were aware of your separation, for example? What method did you use to inform your ex that the marriage was no longer working? You will be required to produce an Affidavit to support your claim that you were separated under the same roof while living together. It is possible that you will be required to file an Affidavit by a friend or family member who was aware of your separation.
What happens if we reconcile after a period of separation but the relationship does not work out?
The entire length of time spent apart must equal one year. a. If you have been reconciled for more than three months, the clock begins over again.
Is it necessary for me to have a copy of the marriage certificate?
Yes, if you are unable to locate it, you must submit an application to the state or territorial registration (of Births, Deaths, and Marriages) for a copy of the record.
What if I get married in a foreign country?
In the event that you were married outside of Australia, you may still be able to apply for a divorce in this country. In order to file for divorce, one of the parties must meet the following requirements:
- Consider Australia to be your home, with the intention of remaining there permanently OR
- You must be an Australian citizen by birth or ancestry OR you must be a permanent resident of Australia.
- Have been awarded citizenship in Australia, whichever is the case.
- Normal residence in Australia, with a minimum of one year of residence here in the past 12 months
But I don’t want to be divorced; what can I do instead?
The Court will give you a divorce if it is convinced that your marriage has broken down irretrievably and that there is no realistic prospect of you resuming your marital life together. If these two grounds for divorce are established, and the time of separation – 12 months – has been completed, the other party may file for divorce, even if you do not choose to do so. It is possible that you may be compelled to undergo counseling if you have been married for less than two years at the time of the divorce filing. This is to investigate the potential of reconciliation.
And what about the Children?
If there are children from the marriage who are under the age of 18, the Court must be satisfied that proper arrangements have been put in place for those children before a divorce may be finalized. There are sections in the Application that ask for information about the children that will be provided to the Court. Then is possible to seek orders concerning children – “parenting orders”- practically quickly after a divorce if the situation calls for it. You do not have to wait until you have obtained a divorce.) Though there are existing processes pending before the Court, the divorce order will most likely be issued even if those proceedings (the parenting proceedings) have not yet been completed, according to the law.
And what about the house..? (investments, superannuation, etc)
You do not have to wait until you are divorced to sort out your property; in fact, you may file for “property orders” as soon as you split to get your affairs in order. We highly recommend this is done as soon as possible. At Mediations Australia our family lawyers and mediators can assist with your property settlement.
When will I be able to get married again?
The application for divorce (together with any supporting documentation) must be served on your former spouse as soon as possible after it is filed. You will not be able to serve the Application in person, but you may serve it over the mail. You can hire a process server to take care of serving the Application on your behalf. Your application will be processed and a court date will be assigned to you 4 to 6 weeks after it is filed. If the Court finds that all of the required information has been provided, the application will be authorized and a divorce order will be issued one month and one day after the court date. Suppose you file your application on February 4, 2015, and are assigned a court date on March 27, 2015, for example. Your application is authorized on March 27, 2015, and your divorce is finalized on April 28, 2015, according to court records. You are unable to tie the knot before this deadline. In some cases, you may be able to apply to the Court to decrease the time limit; nevertheless, you should not rely on the Court’s approval of a time limit reduction.
What is the Property Settlement Process?
Even though Australia’s Family Law Act stipulates that property split for divorce settlements must be “equitable” and “fair,” no particular mathematical methods are employed to determine who receives what in a divorce settlement.
A good strategy to guarantee that the entire process is conducted as fairly as possible is to take into account factors such as each spouse’s present age, health, income, and work as well as their previous earnings and assets at the time of the separation or divorce. Most individuals would then list all of their assets and begin debating how they feel it should be distributed equally between them once all of the circumstantial information for each has been reviewed.
After the talks are completed and both parties are satisfied with the division of their property, their agreement is formalized by the signing of a property settlement agreement. They can then work together to file consent orders with the court through their respective attorneys, which is a very straightforward legal procedure. Once the consent orders for property settlement have been completed, their property agreement becomes legally binding and enforceable, and they may be entitled to specific tax savings based on the terms of the agreement.
Why Do You Require the Services of a Lawyer?
It is extremely critical that both parties have adequate and unbiased legal guidance from their own independent lawyers during the whole property agreement procedure. However, even if you and your partner have successfully negotiated a property agreement that you are both satisfied with, your lawyers will need to analyze all of the facts before issuing a consent order or financial agreement that will make the deal legally binding and legally enforceable. Remember that if your property arrangement isn’t legally finalized, you’re taking a significant risk since your former spouse might decide at any point to alter their mind and seek more property than you initially agreed upon.
What Should You Do Now?
At Mediations Australia, we have a team of family lawyers and mediators who can assist you in Canberra, Perth, Adelaide, Melbourne, Sydney, and all other locations in Australia. We also do international family law matters.
