How do I get Divorced?
Family Law in Australia operates on a no fault basis. This means that there is no need to establish that either party is at fault or has given the other party grounds for a divorce in order to be granted a divorce.
In Australia there is only one ground for divorce, which is an irretrievable breakdown of the marriage as evidenced by separation of twelve months or more. In some circumstances, it is possible to live separately and apart under the one roof during this twelve-month period. However, you would have to provide independent evidence that the marriage has irretrievably broken down.
Once the twelve-month period has expired you may commence a divorce application by filing it in the Federal Magistrates’ Court (which now hears all divorce applications). The divorce application must be served on the other party. The person applying for the divorce cannot serve the application on the other party.
The hearing of the divorce application takes place in the Federal Magistrates’ Court about seven weeks after the divorce application is filed. If there are children of the marriage who are under 18 years of age, the person who applied for the divorce must attend Court when the divorce application is heard.
If there are children of the marriage the Court must be satisfied that proper arrangements have been made for the welfare of the children before it grants the divorce.
The Court then grants a dissolution of the marriage, which becomes absolute (final) one month and one day later.
My Marriage has broken down. Do I have to get divorced before I can seek orders regarding our children and our property?
No. Once you are separated you can seek orders regarding children, property and maintenance before getting divorced.
Likewise, the granting of a divorce does not decide issues about property and maintenance or parenting arrangements for your children. If you want to make arrangements about these issues you should seek to do so with the other party. If this is unsuccessful you may need to consider seeking Court orders.
I married overseas. Can I get a divorce in Australia?
If you were married overseas, you can apply for a divorce in Australia if either you or your spouse regard Australia as your home and intend to live indefinitely in Australia, are an Australian citizen or resident, are an Australia citizen by birth or descent, are an Australia citizen by grant of an Australia citizenship or ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
I have recently left a De Facto relationship. Can I seek orders from the Family Court regarding my children and our property?
The Family Court and Federal Magistrates Court can only deal with issues related to the children of de facto relationships.
In the Australian Capital Territory and Northern Territory only, the Family Court (but not the Federal Magistrates Court) can deal with property disputes between partners in de facto relationships at the same time as hearing disputes about children.
Otherwise, the Federal Courts cannot deal with property disputes between partners in de facto relationships or with maintenance applications for de facto partners. These disputes are dealt with by State and Territory courts under relevant state and territory legislation.
What are Orders of the Family Court?
Family Court and Federal Magistrates’ Court orders are the way the decisions, decrees or judgments of judicial officers of the Court (such as Judges and Magistrates) are described and reduced to a written form.
Most orders of the Family Court and Federal Magistrates’ Court deal with:
- Divorce
- Children and arrangements for their welfare, support and residence
- The division of family property after separation (including superannuation).
- an order made after a hearing by a judicial officer, or
- Consent Orders, which are orders made after parties who have reached their own agreement have applied to a court for orders. Consent Orders, if they become a formal court order, have the same status as if the order had been made after a hearing by a judicial officer.
When an order is made, each person bound by the order must obey the terms or directions in that order, irrespective of whether the order was made after a hearing by a judicial officer or by consent.
As a rule, you may only apply to the Courts for orders after other attempts at reaching an agreement with the other party have failed. These “other attempts” include community-based dispute resolution and counseling.
The requirements for what you must do before you apply to a court for orders are set out in law and vary depending on whether your unresolved issues are about children or about family property.
Can I get Court orders without going to Court?
Yes. If you and your former partner can agree on arrangements regarding your children and the division of your family property you may jointly apply for Consent Orders.
If the Court determines that the Consent Orders applied for are fair and reasonable, properly provide for arrangements regarding your children and deal with family property equitably, the Court can make those orders without you being required to attend Court.
Consent Orders, if they become a formal court order, have the same status as if the order had been made after a hearing by a judicial officer.
What happens if my matter goes to Court?
In reality, if a matter has to go before the Court it will be before the Court on several occasions, not just a final hearing. Most matters would have the following Court dates:
- A directions hearing – at this time directions for the future conduct of the matter would be set down and the Court may make Interim Orders, which are generally urgent, temporary orders dealing with matters such as children’s residence or maintenance
- Conciliation conference or mediation – these are Court-ordered opportunities to negotiate a settlement of the issues between the parties
- Final hearing – where the Court hears the matter and makes final orders.
In practice less than 5% of cases commenced in the Family Court of Federal Magistrates’ Court proceed to a final hearing. Most settle well before.
Should your matter proceed to Court our experienced solicitors can guide you and advise you on all steps of the Court process and would seek to negotiate a satisfactory settlement for you before the matter proceeds to a final hearing.
Where necessary we would engage an experienced Family Law barrister to represent you before the Court.
I recently separated and my former partner has now been made a bankrupt. Will this affect me?
Yes. In recent years the Family Law Act and the Bankruptcy Act have been amended to give more rights to trustees in bankruptcy and creditors in respect to separation and family property divisions or disputes.
If this applies to you, you should realize that all separations are unique and the Family Law Act and the Bankruptcy Act may apply to your particular case in varying degrees. We recommend that you obtain proper legal advice regarding your case.
Where can I get more information?
Our experienced solicitors are happy to meet with you to discuss your matter and your concerns and to provide considered information and advice.
For general information we recommend the Family Court website at www.familycourt.gov.au and the website of the Federal Family Courts (but not the Family Court of Western Australia) at www.familylawcourt.gov.au.