Divorce Lawyers Sydney

Divorce in Australia

Divorce is the legal termination of a marriage. Because it’s a legal process, there are some hurdles you need to clear to be able to proceed with a divorce.

Our Sydney divorce lawyers have expertise across all areas of divorce, separation, child custody, child support, property and financial services.

We also approach our work with compassion and understanding – because divorce is more than just the legal termination of marriage. Our team will help you end your marriage and move on with your life.

It is important to remember that if you are going through a divorce, you are not alone. Many marriages and relationships inevitably come to an end.

For advice about marriage breakdown, contact the family lawyers at Ivy Law Group on (02) 9262 4003 or submit an online enquiry to arrange a free, no-obligation initial consultation.

“No fault” divorce system

You no longer need to provide evidence of an affair, drunkenness, insanity or the like when applying for a divorce in Australia. The Family Law Act 1975 introduced a no fault divorce system.

You do, however, need to show that the marriage has broken down irretrievably and there is no reasonable likelihood of reconciliation.

Even though Australia has a no fault divorce system, there may be some factors the Court considers when making interim or final parenting arrangements. For example, a history of mental illness, drug or alcohol abuse or domestic violence in the marriage may be considered when the Court makes these Parenting Orders.

Can I apply for a divorce?

You can apply for a divorce on your own or jointly with your former spouse.

In Australia, you’re eligible to apply for a divorce if either you or your former spouse:

  • regard Australia as your home and intend to live in Australia indefinitely, or
  • are an Australian citizen by birth, descent or by grant of Australian citizenship, or
  • ordinarily live in Australia and have done so for the 12 months immediately before filing for divorce.

Additionally, the Court must be satisfied that:

  • you and your former spouse have lived separately and apart for at least 12 months, and

there is no prospect or reasonable likelihood of reconciliation.

It is possible for you and your former spouse to be separated under the same roof.

If you and your former spouse have reconciled briefly, you can still apply for a divorce if:

  • the period of reconciliation was no longer than three months, and
  • the period of separation prior to and after the brief reconciliation add up to at least 12 months.

Once your Divorce Order becomes final, you still have to deal with the issues of property distribution, financial support (either spousal maintenance or child support) or arrangements for the children. The Divorce Order simply confirms the marriage has ended.

Same-sex divorces in Australia

Same-sex couples, whose marriages are recognised under the Family Law Act 1975, can apply for a divorce regardless of when the marriage took place.

Same-sex marriages are recognised retrospectively from 7 December 2017, which is the date same-sex marriage became recognised in Australia. Therefore, if you and your former spouse separated prior to this date the 12-month separation period is still required.

If there were any periods of reconciliation, they must not have exceeded three months.

Divorce applications: How do I apply for a divorce in Australia?

The Divorce Process

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How to get a divorce in Australia

STAGE 1: Date of final separation

There is only one ground for divorce – the irretrievable breakdown of your marriage.

This ground is satisfied if you and your former spouse separate and live apart for at least 12 months. At the date of separation, at least one of you must have intended that the marriage was over.

If you’ve been married for less than two years, you’ll also have to participate in counselling to discuss the possibility of reconciliation before making the divorce application. Then, when you are filing your application for divorce you also need to file a Counselling Certificate with the Court.

STAGE 2: Filing an Application for Divorce

Once the 12-month separation period has passed, either you, your former spouse, or both of you together, will need to file the following documents in the Federal Circuit Court of Australia:

  • an Application for Divorce
  • a copy of your marriage certificate.

You’ll also need to pay a filing fee of $910. If you have a concession card this may reduce the filing fee payable.

If you have been separated under one roof, then you will also need to file a supporting Affidavit. In this Affidavit, you will have to provide evidence to the Court that you were separated for a minimum of 12 months during this time.

Once the application is filed, you will be given a date for hearing.

STAGE 3: Service

Service is the legal term given to delivering Court documents to another person to satisfy the Court’s process and ensure the person being served has received the documents.

If you make an Application for Divorce, then service is required on the other party (known as the Respondent). Service does not have to be completed if a joint application for divorce has been made.

Service is proved through an Acknowledgement of Service, which needs to be signed by your spouse, or served upon your spouse. An Affidavit of Service (signed by the person who served the documents) must be filed with the Court via the online Court portal.

Documents can be served by:

  • Hand

A process server, who is hired for a fixed fee, or any person over the age of 18 years can hand deliver the documents on your behalf to your former spouse.

  • Post or electronic communication (for example, facsimile or email)

This service can be used when you are certain your former spouse will sign the  Acknowledgment of Service form and return the original to you for filing.

  • Service on a lawyer

If your former spouse is represented by a lawyer, and the lawyer agrees in writing to accept service, then you can serve the documents on the lawyer’s office.

If the Court is satisfied that service has been completed, then the person served will not need to be present at a Court hearing for Orders to be made.

If the Respondent does not agree to the Divorce Application or the details provided in the application, then they may file a Response to Sole Application for Divorce. The Response is required to be filed within 28 days of service, or within 42 days of service if overseas. Service is also required for the response.

STAGE 4: Court hearing

Once you file the Application for Divorce, you will be provided with a date for a Registrar to hear your matter.  The date of hearing is approximately six to eight weeks from the date of filing.

Whether you will be required to attend the hearing depends on the circumstances.

Not required to attend                        Joint Applications for Divorce

Sole Applications for Divorce, with no children under the age of 18 years of the marriage

Required attendance              Sole Application with children under the age of 18 years of the marriage

If you are unable to attend the hearing, your solicitor may attend on your behalf or you may be able to appear before the Court by telephone – but only under certain circumstances.

STAGE 5: Divorce Order

If the Registrar is satisfied that there has been a separation of at least 12 months, the Divorce Order dissolving your marriage will be made.

The Divorce Order will become final one month and one day after it is made, and you are then free to remarry should you wish to do so.

A copy of the Divorce Order will become available at this time via the Court’s portal which you (or your solicitor if you are represented) can access. Hard copies of the Divorce Order are no longer issued by the Court.

Important time limitations for divorce (married couples only)

Application for Divorce

12 months from the date of separation (married couples only)

Divorce Order

Becomes final one month and one day after the Court grants Divorce at the Court hearing.

Response to Divorce (Australia)

Application must be filed within 28 days from the date of service.

Response to Divorce (overseas)

Application must be filed within 42 days from the date of service.

Special Service           

As soon as practicable, but no longer than 12 months from the date of filing.

Property Settlement

An application for property settlement must be filed:

–           

·         De facto couples: within two years from the date of separation in a de facto relationship, or

–           

·         Married couples:  within 12 months from the date upon which your divorce becomes final.

Spouse Maintenance  

An application for spousal maintenance must be filed:

–           

·         De facto couples: within two years from the date of separation in a de facto relationship, or

–           

·         Married couples:  within 12 months from the date upon which your divorce becomes final.

Parenting Matters     

Proceedings can be commenced at any time. If final orders have been made in parenting matters, then proceedings can only be recommenced if there is a significant change in the circumstances.

Application for Leave

If you fail to commence proceedings within the time limitations, then you must apply to the Court for permission to commence proceedings out of time. To do so, you will have to provide an explanation to the Court about why you failed to commence the proceedings within the required time and show that the failure of the Court to make an Order would cause you hardship.

How do I apply for a divorce if I was married overseas?

The same process applies for a Divorce Application if you were married overseas, provided you or your former spouse:

  • regard Australia as your home and intend to live in Australia indefinitely, or
  • are an Australian citizen by birth, descent or by grant of Australian citizenship, or
  • ordinarily live in Australia and have done so for the 12 months immediately before filing for divorce.

You must provide a copy of your marriage certificate to the Court with your divorce application. If it is not in English, you will need to file an English translation of the marriage certificate and an Affidavit of the Translator annexing the translation.

Can I divorce in another country?

If you and your former spouse have been granted a Divorce Order overseas, then it will be recognised in Australia provided it was made in accordance with the local laws of the country where the divorce was issued.

You do not need to register your divorce in Australia.

Annulment of marriage

What is an annulment of marriage or nullity of marriage?

When a marriage is annulled, it means there was no legal marriage.

An annulment of marriage in Australia requires a decree of nullity. This decree is an Order which confirms that no legal marriage occurred between the parties, regardless if there was a marriage ceremony.

The Family Court of Australia may declare that there was no legal marriage if one of the following grounds is met:

  • one or both of the parties was married at the time the marriage took place
  • one or both parties were under the legal age of marriage (18 years) and did not have the necessary consent to marry
  • one or both parties were forced into the marriage under duress
  • the parties are in a prohibited relationship
  • either party did not provide consent to the marriage because:

          – consent was obtained by fraud or duress

          – one party to the marriage was mistaken by identify of who they were marrying or the nature of the ceremony

          – one party was mentally incapable of understanding the nature and the effect of the marriage ceremony.

How to apply for a marriage annulment

To have your marriage annulled, you need to apply for a decree of nullity. You do this by filing the following documents with the Family Court of Australia:

  • an Initiating Application (Family Law) form
  • an Affidavit setting out the facts you will rely on to have the marriage annulled, including the relevant details about the type of marriage ceremony performed
  • a copy of the marriage certificate, unless you have already provided a copy to the Court.

You’ll also need to pay an application fee of $1,290. If you have a Concession Card this may reduce the filing fee payable.

Serving an Application for Decree of Nullity

The person making the application, known as the Applicant, must serve a copy of the filed Application for Decree of Nullity on the other party to the marriage, known as the Defendant, as soon as practicable.

To prove service, you must file an Acknowledgment of Service annexing an Affidavit of Service from the person who served the documents on the other side. This can be filed via the Court portal.

 

Frequently asked questions about divorce

No, you’ll need to wait a little longer.

If you wish to remarry, you can do so from the date that the Divorce Order becomes final. That’s one month and one day from the date the Court grants the Divorce Order.

For more information about timing, please see Important Time Limitations for Divorce.

Yes, but you can only oppose a divorce application where:

  • the Court does not have jurisdiction to grant the divorce, or
  • the Application for Divorce alleges that 12 months of separation has occurred, but it has not.

If you do not want the Divorce Order to be granted, you must file a Response to Divorce Application.

It depends.

If there are no children under the age of 18 years, you do not have to attend the Court hearing. This applies for both joint and sole applications for divorce.

You don’t need to attend for a joint application, even if you have children under the age of 18 years.

If you’re a sole applicant and have at least one child under the age of 18 years, you will be required to attend the hearing unless circumstances arise which mean you are unable to attend. If you are unable to attend, you can have your solicitor attend on your behalf, or you can appear before the Court via telephone. You will need to complete a Telephone/Video Link Attendance Request form to set out your reasons as to why you are unable to attend the Court hearing in person.

Divorce papers generally means the Divorce Order granted by the Federal Circuit Court of Australia.

If you or your former spouse file an Application for Divorce with the Federal Circuit Court of Australia, that application will be heard approximately six to eight weeks after it is filed.

At the Court hearing, if the Registrar grants a Divorce Order, then it will become final one month and one day from the date of the Court hearing. At this time, your divorce becomes final and your marriage is officially over.

For further information, please see Important Time Limitations for a Divorce.

Yes. A family lawyer specialises in family law matters and can act on your behalf in relation to:

  • divorce
  • parenting matters
  • financial matters (including but not limited to property and spousal maintenance matters)
  • child support matters
  • mediation, negotiations, arbitrations and conciliation conferences
  • any other matter with proceedings held in the Family Court of Australia, the Federal Circuit Court of Australia or in alternative dispute resolution forums.

In Australian law, we use the term divorce to describe a dissolution of marriage.

You can get a Divorce Application form from the Family Court of Australia website or complete the form when making the application via the Court’s portal. Alternatively, you can get a hard copy from the Family Court’s Registry in your local area.

To find out how to apply for a divorce in NSW, we have provided a step-by-step breakdown of the process here: Divorce application: How do I apply for a divorce in Australia?

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