Colloquially, when someone says that they “want to get a divorce”, they usually mean that they:
- want to legally separate their finances;
- sort out custody arrangements and;
- no longer want to be legally “married”.
A divorce is the termination of a marriage. However, the property settlement, custody arrangement, child support, and spousal maintenance matters do not usually get resolved at the same time.
For assistance with your parenting and property matters, please visit our Child custody arrangements section and our Property Settlements section.
In Australia, we have established the principle of ‘no fault’ divorce. This means that as long as you meet the following requirements, you are eligible to obtain a divorce order in Australia. The requirements are:
- Your marriage has broken down irretrievably, which is defined as you and your spouse having been separated for at least 12 months and there is no reasonable likelihood of getting back together.
- You (or the other party to the marriage) fit one of the following criteria:
- Are an Australian citizen;
- Live in Australia and regard Australia as your permanent home;
- Ordinarily live in Australia and have done so for at least 12 months before applying for divorce
- Proper arrangements have been made for care, welfare and development of any children you have together
- If you have been married for less than 2 years – that you attend file a counselling certificate confirming that you have attend counselling.
Can I get a divorce if we’re separated but still live together?
You can still apply for divorce if you and your spouse have been living in the same home, but as a separated couple, for at least 12 months.
There are many factors considered by the Court in deciding whether you and your spouse were in fact living in the same house as a separated couple. Your living arrangement, your financial arrangements, and the public aspects of your relationship are all considered by the Court.
It’s not enough to simply tell the Court and you and your ex have been separated for a long time and you’ve now gotten around to getting divorced. You will need to lodge additional documents with the Court to prove when you and your spouse separated and in what circumstances you’ve been living together. We can assist you to prepare these documents.
What if my ex won’t get divorced?
If you and your ex apply for a joint application for divorce together, then both of you will sign the necessary documents. This is the simplest application process.
However, if your ex won’t agree to a divorce or if you cannot find your ex, you can apply for divorce on your own. You will need to ensure that your ex is correctly served. If you are unsure of how to serve your ex or if you envisage difficulties in serving them, then we can assist with making sure that the legal service requirements are met.
If you cannot find your ex, we can assist you to apply for a special order allowing us to serve your ex via email or Facebook or another type of social media. We may also be able to assist you with applying for a special order to do away with the service requirements completely.
How long will it take?
Once we have all the relevant information, we can draft your application and supporting documents within a week. The lengthy part of the process is waiting for your Court allocated hearing date, which can take up to 4 months. Once a divorce order is granted, it will take a further one month plus one day before it becomes effective.
Other important things to note:
- You will need to provide a copy of your marriage certificate. If you were married overseas and your marriage certificate is not in English, it will need to be translated by a professional translator, who will also have to swear an affidavit certifying the translation. We can arrange the process for you.
- You cannot remarry until your divorce order has become effective. Bigamy is a criminal offence under Victorian law.
- Wills made before the divorce may be invalidated by your divorce order so it is important to have your will checked by a lawyer.
And last, but certainly not least…
Whilst getting a divorce order does not mean your property settlement has been done, it’s important to note how divorce can affect the division of assets. Once your divorce order has become effective, if you have not already legally resolved your property matters by way of Court Orders (including Consent Orders) or a Binding Financial Agreement, you have 12 months to apply for property division and spousal maintenance orders against your ex. If you run out of time, you will need to seek special permission from the Court before you can obtain property division and spousal maintenance orders. This process is costly and permission is not always granted. If you are concerned about how this could affect you, please contact us to discuss your options.