Divorce
Do you need a Divorce?
Divorce means the legal end of a marriage. You can apply for a divorce once you have been separated for 12 months with no chance of reconciliation. But the question of whether you should apply for a divorce is one to discuss with your lawyer, as it is not always in your interests to apply as soon as you are eligible.
Sometimes it makes more sense to finalise any property or parenting matters with your spouse first. If you need to apply to the family courts to resolve your property/financial matters, you must do so within 12 months of the date that your final divorce order took effect, with some exceptions.
Getting a divorce also impacts on your Will and Estate Planning so it is important to plan ahead and get advice from a lawyer. For more information on our Property Settlement services, click here.
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Frequently Asked Questions
What if I get back together with my spouse?
In order to get a divorce, you need to show that you have separated for a period of at least 12 months and that there is no prospect of reconciliation. If you reconcile for a period of 3 months or more, the 12 month period starts again.
Can I be separated under the same roof?
Yes. You may be separated but live under one roof. You will need to show your separation is genuine by filing an affidavit with evidence about how your relationship has changed. Your lawyer can assist you to provide the relevant evidence to the Court.
I don’t know where my spouse is. Can I still get Divorced?
Yes. However, you will need to file an affidavit explaining all the relevant circumstances and any attempts you have made to locate them in order to serve the Application for Divorce. Your lawyer can assist you with providing the relevant evidence. If the Court is satisfied with your evidence, it may grant an order for you to serve the Application by another means, such as electronically, or it may dispense with the requirement for service altogether.
My spouse is overseas. Can I still apply for a Divorce?
Yes. You will need to arrange for personal service of the Application for Divorce in the country where you spouse is. Your lawyer can assist you with this process.
Do parenting arrangements affect Divorce?
Yes. The Court may refuse your Application for Divorce if it is not satisfied that proper arrangements have been made for the care and welfare of any children under the age 18 years. Your lawyer can assist you to provide the relevant details to the Court.
Will I need to go to Court?
In some circumstances you will have to appear in person at the divorce hearing but not always. Your lawyer will advise you if you need to attend Court.
Can my ex-partner oppose my Divorce application?
Yes, but only on very limited grounds such as if they dispute the date of separation. Not wanting to be divorced is NOT a valid ground for opposing a divorce. It is best not to plan a wedding until your Divorce has been finalised in case your ex-partner opposes your application, which will delay the process.
I have been married less than 2 years. Can I still get divorced?
Yes, but you will need to show evidence that you tried marriage counselling before you applied. If you cannot attend marriage counselling or do not want to, you can seek special permission of the Court to get a Divorce but you will need to provide evidence of the relevant circumstances.
Do I need to change my Will?
Yes. Any Will made while you were still in a relationship with your spouse will be automatically revoked once you are Divorced. It is possible and preferable to update your Will as soon as you separate.
Timeline for Divorce Process
