How to Get Divorced in Australia: A Comprehensive Roadmap

8th June 2022

Divorce is sweeping across Australia. Australians have two divorces per 1,000 people. That sounds like a small number, but that means more than half a million Australian couples have been divorced. 

The statistics may suggest that the divorce and mediation process is easy. That isn't true. Yet you can make the process easier, once you understand what the divorce mediation process looks like. 

How do Australian laws regulate divorce? What are the steps you need to take in order to get divorced? How can you negotiate the division of property and parenting time? 

Answer these questions and you can take the first steps toward an independent life in no time. Here is your comprehensive guide.

Jump to visual roadmap Jump to visual roadmap


Qualifications to Start the Divorce Process

The Family Law Act is the Australian law that affects divorce. In order for a couple to get divorced, they must show that their marriage has broken down irretrievably. Each partner testifying about their relationship can help show this. 

But laws require a couple to be separated for at least 12 months. At least one partner must be an Australian citizen, or they must live in the country and regard it as their permanent home. A couple that got married overseas can file for divorce as long as they meet one of those criteria.

A couple that has been married for less than two years must go through counselling before they can file for divorce. They must show proof of their counselling, providing the court with a counselling certificate.

One or both partners can file the divorce application. Australia is a "no-fault" country. This means that the divorce court does not consider why the marriage ended. 

Mediation 

Even if you are not required to go through the mediation process, you should still try it out. It gives you another opportunity to reconcile with your spouse. It also proves to the court that you are responsible and want to take care of your family. 

During mediation, you and your partner will talk to a mediator. You can go over the issues in your relationship and disclose your thoughts about things.

The mediator may ask questions and propose solutions. They may also give you coping exercises so you can respond to stress and reach conclusions on points of conflict.

Talk to a mediator and read a guide about mediation so you know what to expect. Some mediators allow you to be in a separate room from your partner or bring a support person with you. 

The divorce mediation process can occur over several sessions. You are not obligated to come to a decision on anything at the end of one session. You can ask for extra time or an emergency session if you need to discuss something important.

Sessions can be emotionally draining. Focus on resolving your differences, not on bringing up the past or attacking your partner. Listen to what your partner has to say instead of rejecting them.

If you and your partner work out your differences, the process can end and you can avoid the divorce process. If mediation is not working out, you should take the next step.

Separation 

Separation means that you have stopped living as a couple with your spouse. You can separate from your partner before, during, or after the mediation process. It may be a good idea to take some time out of your relationship and see if an independent life works for you.

You or your spouse does not have to leave the home in order for you to be separated. You are separated when you no longer consider yourself in a relationship with your spouse. You have separate bank accounts, you do not share meals, and/or you do not sleep in the same bed.

You may want to tell organisations like Medicare of your decision to separate. This can help you manage your medical decisions on your own. 

It is up to you to make arrangements for your children. If you do live in a separate residence, you can divide up responsibilities between yourself and your co-parent. 

You can tell family and friends whatever you would like. You can turn to them for emotional support, but don't involve them in your mediation or divorce process. 

You can try to get back together with your spouse. If you stay together for longer than three months, you will need to start the 12-month separation period all over again. Individual acts of sexual activity do not affect the separation period.

The Cost of Divorce

The cost of divorce can vary depending on your circumstances. Filing fees can be extensive, with the application for divorce costing $940 for most people. Low-income Australians can apply for a discount, but the application still costs $310.

Costs for lawyers can vary significantly. You should try to find family law fixed fees, as these fees are firm rates that do not change significantly. Some lawyers ask for less than $2,500, which can cover the entire divorce process. 

You should also consider the costs of living independently. You will need to pay for your own food, housing, and other expenses. If you are moving out of your residence, you may need to pay thousands of dollars to afford a new apartment or house.

An infographic visually outlining the cost of divorce in Australia


Starting the Application Process

The twelve-month separation period begins once one person leaves the marriage. You can apply for a divorce as soon as that period is over. Learn about how to get a divorce during your separation period so you can start the process right away.

You can submit an Application for Divorce document with Division 2 of the Federal Circuit and Family Court of Australia. Division 1 does not accept any divorce proceedings. 

Your Application for Divorce must include a copy of your marriage certificate. If the certificate is not in English, you must submit a translation of the certificate. The translator must submit an affidavit verifying their work and explaining their qualifications as a translator. 

If you cannot submit a copy of your marriage certificate, you can still submit an application. You should write an affidavit explaining why you could not provide the certificate and what the marriage was like.

You can file the application on your own. But it is a good idea to hire an attorney, especially if you need to write an affidavit. They can inform you of your legal rights and look over your work for any errors.

If you submitted a divorce application by yourself, you must serve the application to your spouse. They can file an affidavit challenging or accepting the application.

Once the court receives the application, they will set a date for a divorce hearing. It must be within two months of the application filing date.

Court Hearings

Due to the pandemic, all divorce hearings are taking place through electronic video conferencing software. You and your partner will be notified of how to access the hearing in advance of the date. 

You are required to attend if you have a child with your spouse. If you or your partner opposed the divorce application, both of you are required to attend. You can send a lawyer to represent you on your behalf.

You and your partner can also submit a joint document asking the hearing to take place in both of your absences. As long as each of you has a lawyer, you can skip the hearing.

During a hearing, a judge will evaluate the Application for Divorce. They will listen to both sides and understand how the marital conflicts occurred. 

Court hearings can be difficult experiences, even if your divorce is mutual. Follow court etiquette to the letter. Allow your lawyer to speak for you, and remain calm and courteous when you do speak. 

A judge will grant a divorce order if all of the requirements for divorce under Australian laws are met. You will receive a notification in the mail about your divorce. 

If a judge grants you your divorce, they will finalise the process one month and one day after their decision. You are not legally divorced until then. Do not make legal decisions until that time passes. 

If they do not grant you a divorce, you will receive a document about why your divorce was not granted. The judge can suggest the next steps for you so you can try again with your application. You can remain separated from your partner, and you can return to mediation.

Parenting Time Negotiations

A divorce order will not discuss parenting time or property divisions. You will need to negotiate parenting time with your ex-spouse.

You and your ex can create a parenting plan without the need for lawyers. This is a formal document that outlines how each of you will take care of your child.

You must detail where your child will live, how you will cover their expenses, and who can make decisions about their lives. Other people can be involved in your plan, such as grandparents or close cousins.

If you can't work out an arrangement with your spouse, you can obtain a parenting order. Judges like to focus their parenting orders on specific issues, like when you will pick up your child from school. You should try to go through a negotiation process before you turn to the court.

You are under no obligation to divide parenting time evenly. Most judges prefer that you do so, as both parents should be involved in a child's life. But if one parent lives far away or may pose a risk to the child, they will allow an uneven split. 

Property Negotiations

It is also up to you to figure out how you will divide your property. There is no 50-50 split rule in Australia.

Property negotiations include money, real estate, and other financial assets. In general, a dependent spouse will receive a higher share of the property. They may receive 65% of the total assets. 

Spousal maintenance is payments one spouse makes to the other to cover their living expenses. You are not obliged to pay it, even if you make more than your ex. It only occurs when one spouse is dependent on the other for their expenses.

Child support is payments one spouse makes to another to cover the added expenses of caring for a child. As with parenting time, you and your ex can make your own decision about child support.

You can manage payments on your own. One of you can make cash payments to the other, or you can purchase non-cash items like health insurance. 

If you can't come to an agreement, you can ask for a child support assessment. A government official will work out who needs to pay and how much they should pay using a formula.

Recovering From the Divorce Process

A 2021 study of more than 33,000 Australians found that divorce causes significant psychological distress and increased rates of anxiety. Even if your divorce is amicable, you should take steps to cope with and recover from the process. 

You can talk to a mental health counsellor at any point in the process. If you don't know the information for one, you can get one from your lawyer or mediator.

Talk to them about what you are feeling and figure out strategies for dealing with your stress. Deep breathing and journaling can be very helpful.

You may want to join a support group for people going through a separation. This will help you make connections with others and learn about life after divorce.

Spend as much time as you can with your child, family members, and friends. Try to avoid locations you frequented with your spouse, as these areas can trigger bad memories. 

The Essentials of the Divorce and Mediation Process

The divorce and mediation process is extremely difficult. You must be separated from your spouse for at least a year before applying. You should go through mediation to try to resolve the situation. 

Applying for and receiving a divorce order will grant you a legal divorce. But you then must negotiate with your ex on your property and parenting time. 

You can handle much of the process on your own. Yet a lawyer can make divorce easier and help you cope better. 

Turn to help as soon as you're ready. Koolik & Associates serves all Australian families. Contact us today.

An infographic detailing the divorce process


Please note the content of this post is information only and not legal advice.  If you require legal advice it is best to contact one of our lawyers who can review your particular circumstances and then provide tailored advice according to your needs.

RELATED ARTICLES

Copyright © 2022 Koolik & Associates Lawyers. Website Powered by Oncord