What You May Not Know About Divorce in Australia

Divorce in general is a rather misunderstood topic. There is a surprising amount you may not know about divorce in Australia, even if you have been through one! From how divorce can impact your will to the difference in how you divorce if you’ve been married for less than two years, there are so many different factors to consider.

As divorce lawyers, we have put together a list of 9 things people often don’t know about divorce in Australia. If you have any questions about anything on this list or any other aspect of divorce, separation or annulment, our Brisbane, Sydney, Melbourne and Perth lawyers are here to help.

Definition of Divorce in Australia

“Divorce is the legal ending of a marriage (dissolution of marriage),” says the Federal Circuit & Family Court of Australia.

Simply put, if you are legally married and you no longer wish to be married, you will need a divorce (or an annulment in some circumstances). The only way to be granted a divorce in Australia is marital breakdown with no reasonable chance you will get back together. You cannot remarry while you are currently married, and there are steps you need to take to satisfy the court prior to being granted a divorce in Australia.

9 Things You Didn’t Know About Divorce in Australia

1. The average divorce in Australia takes 3 months following a 12-month separation.

To be able to apply for a divorce, you and your married partner must have been separated for at least 12 months with no possibility of getting back together. You can live together during this time (as can often happen before property settlements), but you must be able to satisfy the court that there was separation of finances, no sexual relationship, etc.

Once you have applied for divorce, it may take several months for your divorce to be final. If there are complications, it may take longer to finalise the proceedings. However, the average divorce in Australia, following separation, takes around 3 months.

2. Your divorce means any gifts left to your spouse in a will are now void.

Did you know your divorce may invalidate your will, or anything you are leaving your ex-spouse may not be carried out? Depending on when you last updated your will, the courts may not consider what you left your then spouse as your last dying wishes. This is why, after any big life event, like getting married or divorced, having children, purchasing a big asset, etc., you should be updating your will, even if you intend to bequeath anything to your ex-spouse still.

Wills are very misunderstood and mistaken for being a simple document. However, there are many different areas and laws you need to consider to ensure your wishes can actually be carried out the way you desire.

Laws on wills in Australia differ state-to-state, so speaking to a lawyer who specialises in wills can help you make the right decisions and updates. There are different ways to update your will, such as adding to an existing will or cancelling your current will to create a new one. A wills and estate planning lawyer can help you make the right decisions to ensure your wishes are carried out to plan.

3. Property settlements must be filed within 12 months of a divorce becoming final.

You have just 12 months from the date of your divorce to settle your property matters or apply to the Family Law Courts for orders. This means you have 12 months from the official date of your divorce to settle on who gets what portion of your property, whether that’s 50/50 or another arrangement. De facto couples have two years from their date of separation to settle on property.

If you were to take more than 12 months to settle on your property following divorce, the court may agree to an extension if:

1. There would be hardship caused to you and/or your dependents of the marriage if the extension was not applied.
2. You can demonstrate you would have been unable to support yourself and/or dependents of the marriage without government assistance or benefits in that time if the settlement date could not be extended.

At the time of applying for divorce, your lawyer should ask and guide you on property settlement, if relevant, and assist you with the process. At Aspire Lawyers, our family lawyers provide a future-outlook approach to divorce, helping you look after your legal wellbeing now and in the future. We’re here to answer any questions you may have.

4. Marriages fewer than 2 years old will need counselling prior to filing for divorce.

In Australia, if you have been married for less than two years, you are required to attend counselling. The counsellor will need to complete a Counselling Certificate to advise they have discussed the possibility of reconciliation and they believe the relationship cannot be repaired.

The alternative for divorcing within 2 years without counselling is to receive permission from the court to apply for divorce. You will need to prepare an affidavit outlining why you are divorcing and cannot pursue counselling, such as there being a record of domestic violence.

Of course, you do have the option of waiting out the two years and proceeding with the divorce as per ‘normal’. You will still also need to settle any property within 12 months of your divorce date, regardless of how long you have been married.

5. There is only one grounds for divorce in Australia.

Under Australian law, the only grounds for divorce is ‘irretrievable breakdown of marriage’. Even if one party does not wish to divorce for religious or other reasons, if there has been a separation of 12 or more months, the other party can file for divorce and it may be granted. You do not have to agree or sign anything for the divorce to be made if the other party files.

Divorce isn’t always a mutual decision, but it doesn’t mean it won’t happen. To oppose a divorce, you must have legal cause to do so, which is where a lawyer can be valuable in helping you learn what that may look like.

However, you can oppose a divorce and remain married if you have not been separated for 12 months (as alleged in application) or there is no court jurisdiction. If you do not wish for the divorce to be granted, you are required to file paperwork and appear in court to explain why you want your application dismissed.

You can also have the facts of the Application for Divorce changed, if applied and granted. Things you may change include date of birth or details about children being incorrect).

In any situation where you are facing divorce, whether you are for or against the application, it’s best to seek legal advice to know your rights and options.

6. You can still get divorced if you live together.

We know to get divorced you must be separated for more than 12 months. However, this does not mean you can’t reside under one roof.

To apply for a divorce, you must have been separated for 12 or more months, as in living two separate lives. In some cases, you may need to still live together for some time, whether that’s financial, for the benefit of kids, health care reasons and more. To decide if you are separated, the court will look at if:

• You sleep together.
• Have sex or sexual activity.
• There are shared meals and domestic duties (in a different way to when you were married).
• You share money and bank accounts.
• Your family and friends know or believe you are separated.

Proof of separation can often be a difficult subject. If you are facing any uncertainty, our legal professionals at Aspire Lawyers in Brisbane, Sydney, Melbourne and Perth are here to help.

7. You may not be able to remarry as soon as you think.

In some cases, a cause for hurrying up a divorce is where one or both parties wish to remarry a new party. However, you may want to slow down on that as the day you’re ‘divorced’ isn’t necessarily the day you can get re-married.

As a rule of thumb, you will need to wait until the divorce order is in effect, which is 31 days after the court has granted a divorce. You will also need to take into consideration applying for an intention to marry. Your divorce lawyer or celebrant should be able to guide you in this area to avoid any unnecessary stress.

There are many reasons people may delay getting a divorce, whether financial, religious or other causes. However, say you ‘forget’ about a divorce not being finalised — and it does happen — it’s not something you can rush just because you have a wedding already planned.

You should also not make plans to remarry before your divorce order is finalised. The divorce process can take at least four or more months, and can be pushed out quite easily by even the smallest discrepancy in your paperwork or question from the Registrar. Once you have your date of divorce finalised, you can wait one month and a day, and then apply away to be remarried.

8. You can get divorced without a lawyer, but it’s not recommended.

What you may not know about divorce is you are not legally required to have a lawyer or solicitor to apply or finalise a divorce. However, it is certainly recommended, especially if you have children or dependents, property, savings or assets, or there are ongoing disputes, even if it is just for advice.

Even if you have a straightforward divorce, you may wish to leave the paperwork and other legal necessities up to a lawyer, and just sign the papers when you’re ready. In other cases, there may be a lot of emotion surrounding the separation and divorce, and having a mutual party in mediation or to help guide you can help give you clear options for you to consider or take.

9. Even if you were married overseas, you can get divorced in Australia.

If you were married overseas, you can apply for a divorce in Australia if you or your spouse:

• Consider Australia your home and intend to live here indefinitely.
• Are an Australian citizen by birth, descent or have been granted Australian citizenship.
• Ordinarily live in Australia and have done so for the 12 months prior to filing for divorce with evidence of having done so.

So, no, you do not need to return to the country you were married to process your divorce if you meet these conditions.

To file for divorce for an overseas marriage, you will need to supply the court with a copy of your marriage certificate. Where the marriage certificate is in a language other than English, you will need to have the certificate translated into English and an affidavit from the translator.

If you do not have and cannot attain a copy of the certificate of marriage, you will need to file an affidavit to the court explaining why this is the case, details of the marriage ceremony (like location, date) and that you were recognised as spouses following the ceremony. It is not common for the court to consider an Application for Divorce without the marriage certificate.

Frequently Asked Questions About Divorce in Australia