The role of a divorce in family law, and the steps to obtaining one
There is a common misconception in family law that when a married couple separate and have a dispute about parenting and property matters, the legal remedy is to file an Application for Divorce and obtain a Divorce Order.
The reality is that a Divorce Order only has one role – to terminate a marriage at law. Once a Divorce Order is effective, you can legally re-marry. A Divorce Order does not deal with parenting arrangements or property matters.
What happens if my spouse doesn’t agree to the divorce?
An Application for Divorce can be filed as a sole application. The consent of the other party to the marriage is not an element to successfully obtaining a Divorce Order.
What does the Court need to consider before granting a Divorce Order?
The Court must be satisfied about a number of elements before granting a Divorce Order:
- That they have jurisdiction to deal with the Application.
- One of the parties must be an Australian citizen or lives in Australia and has done so for the 12 months proceedings the Application or regards Australia as their home and intends to live here indefinitely. Watts McCray can provide you advice if you are unsure as to whether there is jurisdiction in your matter.
- That the parties are actually married.
- This can be proved by providing the Court a copy of your marriage certificate.
- That the marriage has broken down irretrievably.
- This can be proved by separation for at least 12 months. If you and your spouse have been separated under the roof at any point during those 12 months, additional documents may need to be filed. Watts McCray can assist you in preparing those.
- If a Sole Application, that the other party is aware of the proceedings.
- This can be proved in a number of ways including by asking your spouse (or their lawyer) to sign a document acknowledging receipt of the Application for Divorce. In the event your spouse refuses to sign an Acknowledgement then a process server can be engaged to serve your spouse. Watts McCray can assist you in this process.
- That there are proper arrangements in place for the care, welfare and development of any child/ren of the marriage.
Divorce in Family Law
What do I need to do to obtain a Divorce Order?
Step 1: Wait 12 months following separation.
Once you have reached 12 months post separation, you are able to file an Application for Divorce.
Step 2: Prepare and file an Application.
Complete the Application and file that together with any supporting documentation required. A filing fee must also be paid.
Step 3: Obtain a Hearing date.
When you file your Application, you will obtain a Hearing date. This is generally be 6 to 12 weeks away.
Step 4: Serve the documents on your spouse.
You should now attend to serving your spouse with the documents you’ve filed, either via post, email, through a process server or via their lawyer.
If your spouse is located in Australia this must be done at least 28 days before the hearing, or 42 days before the hearing if your spouse is located overseas. The divorce will not be granted at the hearing if service has not been effected properly, or too close to the hearing.
Step 5: The Divorce Hearing.
If you file a sole application and there are no children under 18, you do not need to attend the hearing.
If you file a joint application and there are children under 18, you do not need to attend the hearing.
If you file a sole application and there are children under 18, you are required to attend the hearing.
If the Court is satisfied as to all the elements required to grant a Divorce Order, the Order will be made. The Court may make a requisition for further documents to be filed in which case your divorce may be listed for a further hearing a few weeks down the track.
Step 6: The Order is granted.
The Divorce Order becomes effective one (1) month and one (1) day after it is granted. For example, if the Divorce Order is granted at the Hearing on 1 January, the Order will become effective, and your marriage will be legally terminated as at 2 February.
What happens if we were married overseas?
Most overseas marriages are recognised. In the event your marriage certificate is not in English, a translation certificate is required. Watts McCray can direct you to a translation service if a certificate is required.
Do I have to be divorced before I can commence parenting or property court proceedings?
No. You can commence parenting and/or property proceedings immediately upon separation. You can only file an Application for Divorce once you have been separated from the other party for a minimum of 12 months.
What do I need to be aware of after a Divorce Order is granted?
A Divorce Order may revoke or otherwise affect the operation of your Will. Parties should seek legal advice about their position under the law of their State or Territory. Our estate section at Watts McCray can review your Will and advise if a new Will is necessary.
If you have not already done so, parties should remove their former spouse as a beneficiary to their superannuation and/or insurance policies if it is the case that they no longer want their former spouse to be the beneficiary.
If a party to the marriage wishes to make an application to the court for property or maintenance orders, such an application must be made within 12 months from the date which the Divorce Order takes effect. After that time an application cannot be made without first obtaining leave from the court to do so.
If you would like assistance in preparing and filing an Application for Divorce, or have any questions in relation to the process, please contact our friendly team at Watts McCray (02) 9635 4266.