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Family Law: Divorce

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Often, when people use the word ‘divorce’, they include all the aspects of a couple separating: the separation itself, custody of the children, division of any property and the formal ending of the marriage. Legally, ‘divorce’ refers only to the formal ending of the marriage by the courts.

After you have been separated for a period of at least one year, you can apply for a divorce.We offer fixed-fee divorce applications so you can have the confidence of knowing exactly what your fees will be from the outset. In some circumstances, you won’t even be required to attend Court.

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Application for divorce

We are able to advise you of your options to achieve a final property settlement with your former partner and the procedure involved in reaching the outcome. We can also advise you on how to deal with joint bank accounts and dividing personal belongings. Where children are involved, it is important that separating couples talk to their children and ensure the relationship with both parents are preserved. Our lawyers can assist you to work out a living arrangement with the other parents. We will assist you by negotiating with your former partner and advise you on the best possible agreement.

Overseas Spouse

You can apply for a divorce in Australia even if you were married overseas and can do so in Australian even if you or your spouse are not currently living in Australia. You can apply for a divorce if you either, consider 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 12 months before filing for divorce.

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Questions And Answers

The filing fee for lodging an Application for Divorce is currently $910. You can also apply for a reduced fee, which reduces that cost to $305. To be eligible for the reduced fee, the person applying (or both people, if it is a joint application) will usually need to meet the criteria outlined in the following link.  It is important to note that this is only the fee for lodging the divorce application, and is paid directly to the Court. If you wish to engage a lawyer to prepare your divorce, there will usually be additional fees in addition to this amount.

The time it takes for a divorce to be finalised depends on how complicated your matter is (for example, if you do not have a marriage certificate or cannot find your spouse it may take longer) and how busy the court is. Generally, after you lodge an Application for Divorce, the Court will list your matter for a hearing a few months later. You do not necessarily need to attend this hearing. At the hearing, the Court will determine whether or not it will grant a divorce. If your divorce is granted, it will take effect 1 month and 1 day after your hearing date. For example, if your hearing is on 12 April 2019, your divorce will take effect on 13 May 2019. If you are wishing to remarry, it is important to give yourself at least several months between lodging your Application for Divorce and the new wedding date.

If you and your partner have been married for more than 2 years, then you can follow the normal procedure outlined above. However, if you and your partner have been married for less than 2 years and wish to get a divorce, you will usually need to attend marriage counselling before the Court will grant the divorce. The marriage counsellor can then provide you with a certificate allowing you to get divorced. There are exceptions to this, including where there is family violence, or you cannot find your partner. If your partner refuses to attend counselling, then you can usually still obtain the certificate required for your divorce.

You and your partner must be separated for at least 12 months in order to be eligible for a divorce. Some couples separate, reconcile, and then separate again. As long as you get back together for less than 3 months, you do not need to start the 12-month period again. For example, if you separate for 5 months, reconcile for 2 months, and then separate again for 7 months, you can apply for a divorce., as the total separation time is 12 months or more. If you reconcile for longer than 3 months, you need to start the 12-month waiting period from the start.

Depending on what type of application you make, you may or may not need to attend Court. A joint application is where both spouses apply for the divorce together. A sole application is where one person applies for the divorce and then serves their partner with the Application for Divorce. If you do not have any children under 18, and you have no complications in your Application, you do not need to attend court. If you have children under 18, and you and your ex-partner make a joint application, you do not need to attend court. If you have children under 18 and you make a sole application, you will need to attend court. Sometimes, people will have problems with their divorce which make it more complex. Generally, these people will need to attend court, even if they do not have children under 18. This can include not having a marriage certificate, not being able to find their spouse and other issues with service. We strongly advise you to seek legal advice if your situation is complex.

As equal marriage is now legal in Australia, same-sex couples are now able to divorce as well. However, as the first same-sex marriage in Australia did not take place until December 2017, this means same-sex couples will be required to follow the procedure for outlined above. As of December 2019, same-sex couples will be able to divorce pursuant to the usual process, provided they have been married at least 2 years and separated for at least 12 months. If you were married overseas or married prior to a gender transition, we recommend seeking legal advice about how this may affect your marriage and divorce.

“Liberty is the right to do what the law permits.”



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Issues that may arise in family law

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