Ten Key Things to Know About Your Divorce

If you are getting a divorce or considering getting a divorce, you will likely have many questions about the processes, requirements and practical elements of it all. Here we answer some of the most frequently asked questions.

1. Do you pass the “divorce” test?

The Court is not concerned about why a marriage has ended. Australia is a no-fault jurisdiction, which means that the Court does not consider which spouse was at fault in the marriage. All that is required is that the marriage has broken down irretrievably. A two-limbed test is applied:

• the marriage has broken down for a continuous period of 12 months, and
• there is no reasonable likelihood that the parties will resume their married life.

Once the two limbs are satisfied, an application for divorce can be made to the Court. In NSW, you can apply for a divorce by yourself or together with your spouse.

Your spouse can object to the application if, for example, they dispute that the separation period has been less than 12 months. Establishing separation is not always straightforward. On/off relationships are not uncommon, causing difficulties in determining when the period of separation is deemed to have occurred. Issues also arise where the parties cannot afford to live in separate properties.

2. Is it possible to get a quick divorce?

To apply for a divorce, you must have been separated from your partner for at least 12 months. If there is a period of failed reconciliation for three months or more, the 12-month separation period restarts.

If you have been married for less than two years, both spouses will be required to attend mediation. If this cannot be done, an affidavit (a sworn statement) would need to be filed. Afterwards, the normal divorce procedures apply, including the 12-month separation period.

3. What if both of you have remained living in the same property while separated?

It should still be possible to apply for a divorce even though you and your spouse have continued to live in the same property after separation. It may be that you did not have the means to move out of the matrimonial home, which is recognised.

The Court will need to have clear evidence that you have indeed separated.  They will want to know why you have remained under the same roof and the living arrangements. Relevant considerations could include whether you shared a bedroom, performed domestic tasks for each other, or shared finances. Were relatives made aware of the situation, and did you contact relevant government agencies, such as the Child Support Agency, notifying them of the separation?

It would be advisable to ask a lawyer to assist you with this to avoid any delays in your divorce.

4. What if your spouse does not want a divorce?

As long as you can demonstrate that your marriage has broken down, and the required separation period has been met, the grounds for divorce remain intact.

Your spouse is entitled to know about the divorce hearing, and there are strict deadlines in regards to submitting Court documents. If your spouse has reason to oppose the divorce, they can file a response for the divorce hearing.

5. What about your property settlement and parenting arrangements?

Divorce is the process of unwinding the marriage. This process does not include parenting and property arrangements which will need to be dealt with separately. A property settlement can be arranged whether you are divorced or not.

6. Can you still divorce in Australia if you got married overseas?

If you were married overseas, you might still be able to apply for a divorce in Australia. To do so, at least one of the parties must regard Australia as their home and intend to live here; be an Australian citizen by birth or descent; have been granted Australian citizenship or ordinarily live in Australia and have lived in Australia for at least the last 12 months.

You will need a copy of your marriage certificate and additional documentation if the certificate is not in English.

7. When can you revert to using your maiden name?

You can start re-using your maiden name, if you so wish, before your divorce. To change the name of any children, both parents must give consent (see our blog What factors will a Court consider if I want to change my child’s surname).

8. Do you have to attend the divorce hearing?

It may not be necessary to attend the divorce hearing. You may not need to attend if there are no children under 18 years of age or if you have filed a joint application.

If you are applying for an order for a substituted service where you cannot find your spouse to serve the application, then it may be advisable to attend the hearing.

Attendance may also be advisable if you have had to provide an affidavit explaining the circumstances of why you have remained living in the same property together during separation, or if you have been married for less than two years.

9. When can you remarry?

Once you have filed the application for a divorce, it will need to be served on your spouse. After that, you will be allocated a Court date for four to six weeks. Assuming all is correct, the divorce order will become final one month and a day after the Court date. After it has become final, you are free to remarry.

10. Why do you need a lawyer?

It is possible to apply for a divorce online. You can deal with all the documentation and filing requirements on one’s own. However, it can be complicated and daunting; therefore, the benefit of legal representation is to ensure that this is all completed in a proper and timely manner and your rights are properly represented.

Contact our Family Law Lawyers in Sydney, NSW

Separating and divorce can be a confusing and emotionally charged time. The experienced family lawyers at Szabo & Associates Solicitors can help you through the process with practical and expert advice. Please call us on 02 9281 5088 or fill in the online form.