If you’re thinking about getting divorced, the first thing you probably want to know is how long you’re going to be stuck in the process.
In Australia, the divorce application itself isn’t usually the complicated part. To file a divorce application, you usually must have been separated for at least 12 months and one day and meet the other eligibility requirements. After that, the application needs to be filed, processed and heard by the court before the divorce becomes final.
There are a few things that can slow the process down, particularly if you are making a sole application or there are problems with the paperwork. Here’s what the process actually involves.
You Are Required To Be Separated for 12 Months
That doesn’t necessarily mean one person has moved out. Some couples remain living under the same roof after separating, particularly when moving out isn’t immediately practical. In special circumstances, you can seek and obtain permission from the court for the 12 months not to be required, that permission certainly is not guaranteed but in limited circumstances it can be granted.
If this is your situation, you’ll generally need to provide additional information showing that you were living separately despite sharing the same address.
The 12 months usually needs to be continuous, although a brief reconciliation of less than three months can be treated differently under Australian law.
Decide Whether to Make a Joint or Sole Application
You can apply for divorce together or have one person make the application.
A joint application is usually more straightforward because both parties are involved in the application and there is no need to formally serve the documents on the other person.
With a sole application, the other person needs to be served with the divorce documents. There are specific requirements around how and when this needs to happen.
If the other party is difficult to contact, doesn’t cooperate or cannot easily be located, this can add time to the process.
File the Divorce Application
Divorce applications are generally filed online through the Commonwealth Courts Portal.
The court must be satisfied that the legal requirements for divorce are met. Key eligibility requirements include:
- You and your spouse have been separated for at least 12 months (as noted above, it is possible to be separated but remain living together)
- There has been an ‘irretrievable breakdown’ of the marriage
- Either you or your spouse is an Australian citizen or resident and regard Australia as your permanent home
You’ll need to provide information about any children under 18. If you have children, the court will want information about their current living arrangements and how they are being supported.
This doesn’t mean the divorce hearing is a full parenting case. The court generally needs to be satisfied that proper arrangements have been made for the children, or that circumstances justify granting the divorce despite that requirement not being met.
Wait for the Court Hearing
Once your application has been filed, you’ll receive a hearing date.
How long this takes can vary but a straightforward application with correct paperwork is less likely to run into delays than one where information is missing or documents haven’t been properly served.
If you’ve made a sole application, there are generally additional steps to complete before the hearing. For most people, there’s not much to do during this waiting period other than make sure you’ve complied with the court’s requirements and prepare for the hearing if attendance is required.
The Divorce Doesn’t Become Final on the Hearing Date
This often catches people out. If the court grants the divorce, it usually becomes final one month and one day after the order is made, unless the court orders a different period.
Whether or not you attended the hearing, there is usually a waiting period after the order is made before you are legally divorced.
If you’re planning to remarry, this date is important.
So, How Long Does a Divorce Actually Take?
The 12-month separation period is usually the first hurdle. Once that has passed, you need to allow time for preparing and filing the application, getting a hearing date and completing any required service.
If you want a better idea of how long your own divorce is likely to take, you should seek professional legal advice before you file.
Divorce Doesn’t Sort Out Everything
This is a common misconception. A divorce legally ends the marriage but it doesn’t automatically divide your property or decide parenting arrangements.
You and your former partner may still need to deal with the family home, superannuation, bank accounts, debts, investments and other assets. Parenting arrangements are also dealt with separately.
You can reach an agreement about these matters, but it’s important to understand how that agreement should be documented and whether further legal steps are needed.
There can also be time limits that can apply to property settlement applications after a divorce, so leaving financial matters unresolved indefinitely isn’t a good idea.
When Should You Talk to a Family Lawyer?
You don’t need to wait until your 12-month separation period is over before speaking to a lawyer.
Getting advice earlier can help you understand what needs to happen with your property, finances and parenting arrangements while you’re working through the divorce process.
It can also be useful if you’re separated but still living together, you’re unsure about your separation date, or you expect your former partner to dispute something.
If you are looking for family lawyers in Melbourne, BRLG can help you understand your options. We are here to provide advice about the divorce process and the other legal issues that often sit alongside it.
Make an appointment with our family lawyers online now or by calling 03 9005 8284.
This article provides general information only and is not legal advice. The requirements and options that apply depend on your circumstances. For advice about your situation, contact BRLG (Bedrock Legal Group).
