Melbourne Divorce Lawyers

Divorce is a separate process and court application to other issues you may be dealing with as part of your separation, such as your property settlement, claims for spousal maintenance, parenting arrangements and child support.

To finalise your property settlement, you will need a final property Order from the Federal Circuit and Family Court of Australia or a Financial Agreement.

To obtain a divorce, you will need a divorce Order from the Federal Circuit and Family Court of Australia.  

Following a separation, most people will resolve their property and financial issues, and any parenting issues, before they apply for a divorce.

But if you divorce before sorting out your property and financial issues, there is a 12 month time limit from the date of your divorce, in which to make an application to the Family Court for a property settlement or for spousal maintenance.

In some limited circumstances the Court can allow a person to make an application outside of the 12 month time limit that starts when a divorce is obtained. Our experienced team can provide you with more information about this and assist with that process if necessary.

You need to be separated for at least 12 months before you can apply for a divorce. This is why most people focus on sorting out their property and financial matters and any parenting issues first .

If you were married for less than a year before you separated, there are some additional requirements before you can apply for your divorce:

• At least 2 years needs to have passed since the date of your marriage before you apply for divorce, or
• You need to undertake counselling to see if there are prospects of reconciliation, or
• You need to seek the court’s permission to proceed with your divorce without counselling. 

Divorce applications are made to the Federal Circuit and Family Court of Australia. The Court lists the application for a hearing before a Judicial Registrar of the Court, to be held approximately 6 to 8 weeks after the application date.

At the hearing the Judicial Registrar reviews the application at the hearing and determines whether a divorce should be granted. If a divorce is granted, it becomes final one month and one day after the hearing, and the Court then issues a certificate of divorce.

It is not always necessary to attend the divorce hearing. If an application has been made by spouses jointly or there are no children under 18, attendance at the hearing is usually not required. Where a hearing is required, these days, most divorce hearings are held online, using Microsoft Teams. We can let you know whether it will be necessary to attend a hearing for your divorce application, and if so, attend the hearing on your behalf.

You can make a joint application for divorce with your spouse. In that case, the application does not need to be served after it is filed with the Court.

Alternatively, you can file an application for divorce without involving your spouse in the application and serve it on your spouse once it is filed.

Aside from this, the process is the same for both applications.

If the Court is satisfied with a divorce application, it grants a divorce order on the day of the hearing. However, the divorce order only becomes final (“takes effect”) one month and one day later, at which time the Court will grant the certificate of divorce.

The 12 month time limit for issuing proceedings for property settlement or spousal maintenance starts running from the date the divorce order takes effect, not from the date of the hearing. 

You do not need to sign or do anything official to be separated. And you can be separated and still living in the same house as your spouse.

Most separated parties have a common view about the date that separation occurred.

But if there is a difference of opinion about the date of separation, and the date of separation is a material issue to a divorce or property settlement, the Court can determine the date of separation.

The Court will find that you separated when you or your partner formed a view that the relationship was over and communicated that view to the other person by words and actions. The actions might include moving out of the family home or into another bedroom, telling friends and family about the separation, ceasing to socialise together, ceasing a sexual relationship or living separate lives. None of these actions on their own are determinative – the Court will consider them within the context of your relationship before separation.

If you have children, as well as being separated for at least 12 months, the Court will need to be satisfied that there are appropriate arrangements in place for your children, before it grants your divorce.

This does not mean that you need to have final parenting Orders or a Parenting Plan in place before you apply for a divorce. But you will be required to answer some questions in your divorce application about the children’s living arrangements, the time they spend with the other parent, supervision of them, their housing and their schooling and health. If we are preparing a divorce application for you, we will make sure the Court has all the information it needs about these parenting matters.

Once you file your divorce application with the Court, it will be listed for hearing in approximately 6 to 8 weeks. If your divorce is granted at the hearing, it will become final one month and one day later.

The same legal process applies to all couples in relation to divorce, whether the couple has been in a same sex relationship or opposite sex relationship.

Australia has a no fault system of divorce. This means that the Court does not need to consider what caused the end of the relationship and who was at fault, when deciding whether to grant a divorce. The Court only needs to consider whether the marriage has irretrievably broken down, as evidenced by a period of at least 12 months of separation.

Before 1975, Australia had a fault based divorce system, which meant that a person had to prove the other person had committed a marital fault in order to be able to obtain a divorce.

There were 14 grounds that could be relied upon to demonstrate marital fault, including adultery, desertion, cruelty, drunkenness, imprisonment and insanity. Evidence had to be provided to the Court, which resulted in people engaging private detectives to prove these things.

Fortunately, this fault based legal system ended with the introduction of the Family Law Act in 1975.

No fault divorce means that someone’s behaviour in a marriage is not a factor as to whether a divorce is granted.

But the way people behave during a marriage, and after separation, is still relevant in many ways in family law.

Issues of family violence, drug and alcohol abuse and mental health risks are relevant in determining appropriate parenting arrangements and can be relevant to financial settlements.

At Blackwood Family Lawyers, we are very strategic in our approach to resolving your family law issues. So, how your partner behaved during the marriage, and after separation, often helps us determine how best to approach negotiation and, if necessary, litigation.

You can still apply for a divorce if you are living in the same house as your partner, but in that case you and another person will need to file affidavits with the Court, detailing particular matters to establish that you and your spouse have genuinely separated. As experienced Divorce Lawyers Melbourne, we can help you with this sort of an application.

You do not need to have been married in Australia, to divorce in Australia.

If you were married overseas, you can still apply for a divorce in Australia provided that either you or your spouse:

• Are an Australian citizen, or
• Regard Australia as your home and intend to live here indefinitely as a citizen or resident, or
• Ordinarily live in Australia and have done so for the last 12 months.

If your marriage certificate is not in English, you will need to provide the Court with an authorised translation. We can assist with obtaining this.

You do not need to be present in Australia to apply for a divorce.

If you are living overseas, you can still apply for a divorce in Australia, if you or your spouse are an Australia citizen, or if your spouse regards Australia as their home and intends to live here indefinitely as a citizen or resident, or if your spouse ordinarily lives in Australia and have done so for the last 12 months.

Our experienced family lawyers can use video conferencing and other technology to meet with you and act for you, wherever you are in the world.

If you and your spouse have divorced in another country, according to that country’s laws, the divorce will be recognised in Australia. You will not need to apply for divorce in Australia or register the divorce in Australia.

It is unusual for someone to oppose a divorce. Even if your spouse does not want to divorce, the Court will grant the divorce, provided you and your spouse have been separated for 12 months and you have served a copy of your divorce on your spouse.

If your spouse is being obstructive and refusing to accept service of the divorce application, our experienced family lawyers can help with this.

If you wish to remarry, you need to wait until your divorce is final. The divorce process usually takes about 3 months from the date of your application, so if you are considering remarrying, talk to us about whether you are eligible to apply for a divorce now.

Most people choose to divorce after separating from their spouse. But some people prefer not to divorce or choose to wait some years after separating before divorcing.

It is not legally necessary to divorce, unless you or your spouse wish to remarry.

But it may be to your advantage to divorce, or not to divorce, depending on your property and financial circumstances with your spouse. We recommend you obtain advice from our knowledgeable family lawyers about this.

If a marriage is annulled, the marriage is deemed to have never occurred. This is different to a divorce, where the marriage still occurred, but has been terminated.

Under Australian law, a marriage can be annulled if:

• Either party was lawfully married to someone else at the time of marriage
• The relationship was prohibited (for instance a brother marrying a sister)
• The laws of a marriage ceremony were not complied with
• One or both of the parties were not a marriageable age
• There was no consent to a marriage.

To find there was no consent to a marriage, the Court needs to be satisfied that there was duress, mistaken identity, mistaken belief about the nature of the ceremony or some sort of mental incapacity.

Annulments are quite rare in Australia.

The Catholic Church has its own process for annulments of marriage. However, these are annulments according to the rites of the Catholic Church, not under Australian Law.

• We will explain what is needed for your divorce application.
• We will advise you whether you will be better to make a divorce application by yourself or jointly with your spouse and the difference in those processes.
• Depending on your preference, we will help you make the divorce application yourself, or make the application on your behalf, streamlining the process for you and removing all the hassle and stress.
• If you have been served with an application for divorce from your spouse, we will make sure that everything is in order and rectify any errors in the application that might otherwise have an impact on other parts of your separation process.
• When you apply for a divorce, you need to serve your divorce application on your spouse. Sometimes service of a divorce application is complicated by the other person being overseas or their location not being known. In those situations, we can resolve any barriers by making special applications to the Court for substituted service or by using our networks of specialised process servers. 
• In complex divorce matters such as contested divorces and annulments, our skilled family lawyers have the experience and technical knowledge to identify and troubleshoot issues and provide expert represent for you in Court.