Now it’s time for a divorce
The term divorce is often used to describe all the legal matters married couples need to consider, however the word itself, when used by family lawyers, relates only to the application you can make to the Court to formally dissolve or end your marriage.
A divorce is a reasonably simple application to make and many of our client’s choose to bring their own divorce application. The application itself is applied for online and in many cases there is no need to attend Court to complete the process. There are a few tricks though and we can help you make sure you are on the right track or manage your divorce application for you if you would prefer.
You can apply for a divorce once you have been separated for twelve months. However, while a divorce will bring about a legal end to your marriage, it is important to keep in mind that it will not finalise your property division or formalise arrangements for your children.
How to apply for your divorce
- Visit the Family Law Courts website and download their online kit, which will outline the process and other useful information concerning your divorce.
- Complete the Application for Divorce form, which is contained in the online kit. You can either apply with your partner or individually. Just note that if you do have children under the age of eighteen and you are not applying together for your divorce, the person applying will need to attend Court on the day of the hearing. If, however, you don’t have children under the age of eighteen or you are applying jointly, there will not be a need for you to attend at the divorce hearing unless you specifically wish to or unless there is a complication with your application.
- Sign the application before a lawyer, Justice of the Peace, or other person authorised to witness affidavits.
- File the application with a Family Law registry, including the original and two photocopies of your application for divorce and any supporting documents, as well as a copy of your marriage certificate. Alternatively, you can apply online through the Commonwealth Courts online portal (http://www.comcourts.gov.au/).
- If you have applied solely for the divorce, then you will need to serve the application on your spouse. There is more information on the Family Law Courts website about how to appropriately undertake service. In essence you will need to organise for your spouse to be handed a copy of the filed Application form- you cannot be the person to hand it over.
- Once the application is filed, a divorce hearing date will be issued. If there is a need for you to attend at the divorce hearing, it is a reasonably simple procedural event. There will be a lot of other couples there on the same occasion. Normally someone at the Court will talk you through what you need to do and where you need to stand, but generally divorce hearings are conducted by Registrars. You should refer to the Registrar as ‘Registrar’ if you are asked to address them in any way. Stand when they are speaking to you, listen to what they have to say and simply answer their questions. It is very common now for separating couples to act on their own behalf for a divorce hearing and the Court is quite used to this and will help you through the process. The Court appearance will generally only last about five minutes.
The divorce itself does not become effective until a month after the divorce hearing date. You will then receive a divorce certificate in the mail, which will state the date of your divorce.
Time limitations and other considerations
The important thing to remember is that, once you are divorced, you have only twelve months from that date to have either finalised your financial affairs, particularly your property settlement and any spousal maintenance arrangements, or to have at least commenced an application in one of the Family Courts if you and your partner can’t reach an agreement.
The other important thing to remember with a divorce is that it can have a significant impact on any existing will and you should get specific legal advice on that issue from a family or estate lawyer.
Just keep in mind that it is important to formalise your financial settlement independent of your divorce, otherwise you might find your former partner coming along ten years after your separation seeking a share of your wealth!