Firstly… what is (and isn’t) a divorce?
A divorce, quite simply, is the legal end to your marriage. Any arrangements made with your former partner over the division of property or care arrangements for children are dealt with separately. You can divide the property of the marriage and put care arrangements in place for your children as soon as you separate and without being divorced.
Below, we outline some of the key questions we frequently get asked from people considering, or involved in, getting a divorce.
- How long do we have to be separated before we can apply for a divorce?
You need to be separated for at least 12 months before you can apply for a divorce. For example, if you separated on 20 July 2020, you can make the application any time from or after 21 July 2021.
- What if we have been living together during the separation period?
For this purpose, “separation” means living separately and apart and you can do that under the same roof. In fact this is relatively common. However, if you have not been living separately for at least 12 months, you will need to provide further information to the Court to establish that although you were living together you were in fact separated at that time. The Court will require certain information, for example,,, how did you communicate to your former partner that the marriage was over? Did your family and friends know you were separated? You will need to file an Affidavit in support of your separation, along with an affidavit from a friend or family member who knew about the separation and can vouch for the fact that you were separated under the same roof.
- What happens if my partner doesn’t want a divorce?
In Australia, we have a ‘no fault’ divorce system. This means that the Court will grant you a divorce as long as it is satisfied that there has been an irretrievable breakdown of marriage, which essentially means that there is no reasonable likelihood that normal married life can continue. As long as this is established, and the mandatory 12 month period of separation has passed, then a divorce can be granted, regardless if only one of the parties to the marriage wants it.
- How long do I need to wait before I can remarry?
You cannot remarry until your divorce becomes final. The steps that usually occur when applying for a divorce are below:
- Application for divorce and supporting documents are filed with the Court
- Divorce papers are served on your former partner (either by post or via a process server)
- You will be given a Court date 4-6 weeks from the date of filing of your application
- If all information given to the Court is correct, and service has been effected on your former partner, then the Divorce order will become final one month and one day after the Court date (ie, if the Court date is 23 August 2020, then the divorce becomes final on 24 September 2020).
- What happens if I was married overseas?
If you were married overseas, you can still apply for a divorce in Australia as long as at least one of the parties:
- Regards Australia as home and plans to live in Australia indefinitely
- Is an Australian citizen by birth or descent
- Has been granted Australian citizenship
- Ordinarily lives in Australia and has lived here for at least the past 12 months.
- What happens if we have children under the age of 18?
The Court will need to be satisfied that there are appropriate arrangements in place for any children of the marriage under the age of 18, before a divorce will be granted. However, no formal arrangements or orders about the children are required. The divorce application itself contains questions about the children and you are required to answer these questions as well as orally confirm at the Court hearing that there are appropriate care arrangements in place for the children. This can be as simple as advising the Court that the children spend time with you and your former partner by agreement or, if there is disagreement about the care arrangements, you might advise the Court, for example, that you are participating in mediation or that there are current Family Court proceedings on foot with respect to the children’s care arrangements. Parties that have separated can apply for parenting and property orders as soon as they have separated – you do not need to wait until you are divorced.
- What happens to any joint property or assets?
Property settlements and parenting arrangements are dealt with separately to the divorce itself. What is important to note, though, is that a party to a divorce only has 12 months from the date the divorce is finalized in which to lodge an application in the Family Court for a property settlement.
How can TGB Lawyers’ Fixed Fee family law service help me?
We now offer Fixed Fee family law services to clients based in Perth, Western Australia. Essentially, our fixed fee billing system means you will know the cost of your legal bill from the outset. It allows you to plan for, and be in control of, your legal costs.
If you would like to discuss any aspect of divorce, or how our Fixed Fee family law service can help you, please visit our Fixed Fee family law web page or contact a member of our team: