The Total Time It Takes To Get Divorced in Australia
Many couples considering divorce or separation often ask ‘how long does it take to get a divorce in Australia’ and are unsure how long the whole divorce process will take.
In Australia you are required to file an Application for Divorce. This application is filed with the Federal Circuit and Family Court of Australia and a date is set for the Application to be heard. If your Divorce is granted, the Court will issue a Divorce Order (previously known as a Certificate of Divorce) one month and one day from the date of the hearing. However, the process sometimes incurs delays, especially if it is contested.
Eligibility Criteria for Divorce
The process of how to get a divorce in Australia is complex, and there are eligibility requirements you need to meet before a divorce order will be granted:
In Australia, we have no-fault divorce, which means the only grounds for divorce you need is that the relationship has broken down ‘irretrievably’. This is evidenced by a period of at least 12 months of separation. The date of separation is important in the family law context and is established when either party communicates that the relationship is over. It is possible for parties to continue to live under one roof and still be separated in the same residence. This is called “separation under one roof“. While couples don’t have to physically separate, evidence of separation while living in the same home is still required such as living in separate rooms, ceasing sexual activity, or having separate bank accounts. It is also possible that couples have brief periods of reconciliation during these 12 months, but they can last no longer than 3 months or the separation period restarts. If you are separated under one roof, you will be required to file an Affidavit with the Application for Divorce.
- care arrangements
If there are children under 18 or an adult child who is financially dependent (including both a foster child or step-child), the Federal Circuit and Family Court of Australia will not grant the divorce until you provide evidence of proper arrangements for the day-to-day care and maintenance of the children. There are special circumstances where a divorce may be granted without proper care arrangements in place. Parenting arrangements and child support are legally complex, so it’s best to seek legal advice in these cases.
You are an Australian citizen or resident.
- Marriages less than two years
If you have been married for less than two years, the Court requires both parties to attend counselling. If after counselling, the marriage cannot be reconciled you will need to file a counselling certificate with your application.
Once you have satisfied the requirements above you can proceed with preparing and filing your application to the Court.
Common Delays to Divorce Proceedings
How long does it take to get a divorce in Australia? Well, it can depend on several factors and on your current circumstances.
Incorrect Documentation & Procedural Issues
Failure to submit the documentation correctly or if you haven’t followed the correct procedural steps can mean the Court will reschedule your hearing to a later date, which will mean delays.
To speed up the process, it’s important to ensure the application and all supporting paperwork (such as your marriage certificate) are submitted correctly and all necessary procedural steps are taken.
Inadequate or Missing Care Arrangements
If there are children involved, the Court could also delay the hearing if it is not satisfied with the care agreement put forward. If you want to reduce the time it takes, start the negotiation process on parenting matters as early as possible after separation and utilise a family lawyer to ensure your parenting arrangements will satisfy the Courts.
Spouse Unlocatable or Refusing Divorce
In some cases, one party may not want to get divorced (known as a contested divorce), which can delay the process and create more challenges.
In Australia, it is illegal to refuse divorce because it is not a joint decision. However, If you make a sole application, you will need to arrange to have the other party ‘served’ with the Application for Divorce. This can be a complicated process, so it is best to seek legal advice about how to properly serve the Application for Divorce.
If the other spouse cannot be located, then the timeframe will be extended as additional legal steps are required.
Delays in the Court
It’s important to note that the Federal Circuit and Family Court of Australia are always managing a high volume of cases. This could mean that you may have to wait a longer period for a hearing date, despite having everything in order.
You have a period of 12 months to apply to the Court for a divorce property settlement in the instance that you and your spouse are unable to come to an agreement on your own.
You can begin settlement proceedings before the divorce is finalised. It’s important to remember that gaining a divorce does not involve reaching a property settlement agreement with your former spouse. These are separate processes in Family Law.
A settlement can be reached via agreement or through mediation and the Family Law Courts. Our property settlement lawyers can help you navigate this process and ensure a successful and fair outcome of property division.
The Importance of Legal Advice
While there is no such thing as a quick divorce, a divorce lawyer can definitely fast-track the process and help out with related family law matters.
There is the option to do the application by yourself but this can be time consuming and stressful and the divorce could be delayed if you do any part of the process incorrectly.
A divorce lawyer will ensure your application is filled out correctly and all the correct procedural steps are taken to reduce any delays in Court.
Sage Family Lawyers have completed a range of divorce proceedings from simple and amicable to complex, opposed cases and everything in between. We can help you with your application, represent you in Court, as well as assist with parenting and property matters that arise.
Frequently Asked Questions
Will I Have to Go to Court to Get a Divorce?
It’s important to work out if you will be doing a sole or joint application as they come with different obligations.
If you make a joint application with your spouse or if there are no children under the age of 18, then you will NOT be required to attend Court.
In this instance, you can start the process via an online application via the Commonwealth Courts Portal. The hearing date will be set and both parties will not be required to attend given all the correct documentation was submitted through the portal.
If you make a sole application or there is a child (or children) under the age of 18, it is a requirement that you attend the divorce hearing.
Can I Remarry Immediately After Filing for Divorce?
No, it is illegal in Australia to remarry before a divorce is legally granted. You must wait until the Court officially grants your divorce before remarrying.
Your divorce is not final until the divorce order is issued, which is one month and one day after your hearing date. However, this could be delayed for different reasons, so it’s best to wait until you receive the order before setting a wedding date for your next marriage.
What is the Cost of Divorce?
The cost of divorce will depend on if lawyers are used or not. Without lawyers, there are still fees required by the Court. For a full breakdown of the cost and further information about the question ‘how long does it take to get a divorce in Australia’ read our article – The Cost to Divorce in Australia.