Divorce can be seen as an all-encompassing word to describe the separation process. Technically however an application for divorce is an administrative application to the court to formally end your marriage. In the same way that you received a marriage certificate when you married, you receive a divorce order once your divorce has become final.
Your application for divorce is totally separate to your parenting or property matters. It does not impact in any way your on parenting arrangements for your children. It may impact your property settlement in certain circumstances.
You can apply for a divorce one year and one day after you formally separate from your husband or wife. You must have either agreed on a separation date or clearly communicated to your spouse that you consider the marriage to be over.
You must be an Australian citizen, domiciled in Australia (that is you treat Australia as your home) and ordinarily reside in Australia and have been resident for at least 12 months prior to filing the application.
Finally you must have lived separately and apart for a period of at least 12 months with there is no reasonable likelihood of a reconciliation.
Over time the divorce process has become more refined and streamlined. The Federal Circuit Court of Australia (the court responsible for divorce applications) now runs entirely electronic court files for divorce applications. You cannot to go to the court registry to file an application for divorce in person. Applications are lodged online through the Commonwealth Courts Portal. Any supporting documents are uploaded through the Portal.
If you have lived separately for at least 12 months the process is relatively easy. Where you have lived under one roof but separately or where you have gotten back together and separated again there will be some extra documents you need to prepare. You might also need to get some advice from a lawyer about this. The easiest thing to do of course is to just wait until you have actually been living apart for 12 months. Obviously there might be some circumstances where that isn’t possible, so getting advice on this point is key.
Before you file your application you need to consider whether you are making the application on your own, or whether you and your spouse agree to make a joint application. There are some benefits to a joint application which you need to consider:
- if you make a joint application you do not need to go to court on the hearing date. The court will check the application and, provided you have complied with the administrative requirements, grant your divorce order.
- you may be able to share the fees associated with filing the application.
- you don’t have to arrange to serve the application on your spouse.
If you are making a sole application then:
- after you have filed your application you will need to arrange to serve your spouse with the application.
- service must occur 28 days prior to your hearing date.
- if you have children you must attend at court on the hearing date.
- if you don’t have children, and you have lodged your affidavit proving service, then you don’t have to go to court on the hearing date.
If you have to attend court your application will be heard by a Registrar of the court. The Registrar will go through all of your documents and if satisfied that everything is in order, they will grant the divorce order. One month and one day after your divorce hearing, your divorce order will become final and you will receive a copy of the divorce order in the mail or it will be available for download from the Portal.
There is one key date which you must keep in mind following the granting of your divorce order – once your divorce order becomes final you have 12 months within which to either:
- finalise your property settlement by financial agreement or consent order;
- commence proceedings for property settlement or spouse maintenance orders.
This is very important to remember. If your property matter has not been finalised and is not before the court when your divorce order becomes final you need to make a note of the date – you have 12 months or you will be prevented from commencing proceedings without first obtaining permission from the court.
Where applying for a divorce is an administrative process of formally ending your marriage, it is not necessary to wait for that application to be made to finalise your parenting and / or property matter. They are entirely separate processes.