Step 1 – call your Divorce Lawyer!
Step 2 – if you can’t do the above that is perfectly ok, we encourage you to read on.
There are a number of steps and requirements for obtaining a divorce which can vary slightly depending on your circumstances. The good news is family law provisions have changed a lot over the years making the divorce process as easy and pain-free as possible. For example, the no-fault divorce principle means courts are not interested in reasons behind why you are divorcing.
You must be separated for a period of 12 months and 1 day or more
Firstly, you must be separated for a period of 12 months and 1 day or more and that there is no likelihood of getting back together.
What if we are separated but still live together?
If you have been living under the same roof while separated, a court will require proof that you were in fact separated before you are granted a divorce. If you get back together during this period of three months or more the 12 months starts again.
If you are in this situation, then you will need to support your divorce application with an affidavit – which is a written statement proving that you have separated.
You need to be married for at least 2 years
Secondly, you need to have been married for two years or more before you can apply for a divorce.
What if I have been married for less than 2 years?
If your marriage has been less than 24 months then Courts require you to attend counselling/mediation.
You can apply to not do counselling/ mediation under certain circumstances for example if there is a history of violence or you fear meeting your spouse, or other circumstances.
Your spouse must be an Australian citizen or resident
There is a further requirement that either you or your Spouse must:
- Intend on living in Australia indefinitely or regard it as your home country OR
- Be an Australian Citizen Or
- Have been living in Australia for 12 months or more immediately before filing for divorce
Can I apply for a divorce myself, or do I need a lawyer?
Yes you can, a lawyer is not always necessary for a divorce. For example, if you have no marital assets, no children and don’t wish to receive spousal support, then you can divorce without needing the help of a lawyer.
Can I apply for a divorce without my spouse?
You can apply for a divorce with or without your Spouse. Applying without your Spouse requires you to make reasonable attempts to contact them and serve the documents on them as well. If your Spouse cannot be located, the court will require evidence of these attempts and can then grant the divorce in their absence.
Apply for a divorce by yourself is called a sole application. Applying together with the other party is called a joint application. Whether you start filing a sole or joint application, keep in mind that there are different obligations that apply to each.
What if we got married overseas?
According to the Marriage Act 1961, your overseas wedding will usually be recognised as a valid marriage in Australia if your marriage was recognised as valid under the law of the country in which you married.
What happens when I don’t know where my spouse is?
In the event you are having trouble locating your spouse and can’t serve your divorce application on her / him, then you can apply to the Court for substituted service or dispensation of service.
In both situations, you will have to show the Court that you have made reasonable attempts to contact your spouse and explain the steps you have undertaken to locate your spouse in an affidavit.
Do I have to attend court for divorcing?
You generally do not have to attend court unless there are children aged under 18 involved or if your spouse has opposed the divorce. If you are not required to attend court, the Judgement (the divorce) is sent to you in the mail.
Last updated on June 10th, 2019 – Written by Jeremy Maspero.
Jeremy Maspero is a family law lawyer with a diverse range of experience and skills. With the experience you need and results you want, contact Jeremy today for a consultation to understand how he can help you on 02 8052 3322 or firstname.lastname@example.org.