Divorce means the legal end of a marriage (dissolution of marriage).
If either you or your spouse:
- Regard Australia as your home and intend to live in Australia indefinitely; or
- Are an Australian citizen by birth, descent, or by grant of Australian citizenship; or
- Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce
you can apply for a divorce order provided that you and your spouse have lived separately and apart for at least 12 months and there is no reasonable likelihood of resuming your marriage. It is possible to live under one roof and still be separated, however, you will be required to file an affidavit and a corroborating affidavit, confirming you have lived under one roof on a separated basis if you are relying on the period in which you have lived under the one roof on a separated basis as constituting the mandatory wait period of 12 months from the date of separation before filing.
If you were married overseas and your marriage is recognised in Australia (in accordance with Part VA of the Marriage Act 1961), you too can apply for a Divorce order in Australia – however if your marriage certificate is not in English, you need to provide an English translation of the marriage certificate together with an affidavit of translation of marriage certificate from a certified translator.
It is important that you are aware that the granting of the divorce does not deal with or determine issues of Property division, Spousal maintenance or arrangements for Children. It is simply the obtaining of a formal order that the marriage has legally ended.
How long does divorce take in Australia?
The obtaining of a Divorce is a relatively quick, cheap and straightforward exercise.
It is possible for either of you to unilaterally apply for a Divorce order or if you are still on speaking terms with your ex, so to speak – you can make a joint application for a Divorce.
You have to pay the Divorce filing fee (which increases every 1 July) which currently stands at $1,100 – however, with joint applications, you can agree to split the court filing fee.
Divorce applications are e-filed online using the Commonwealth Courts Portal online form and allocated a hearing date usually around 6 weeks from the date of filing. Provided the court is satisfied it has jurisdiction , it has been more than 12 months since you and your spouse separated, there are appropriate arrangements in place in the care of any children of the relationship and service of the Divorce application has been effected on the other party ( in the case of unilateral applications), the Divorce order will be made at the hearing and will take effect 1 month and 1 day thereafter, which is the date you are considered legally divorced and when the sealed Certificate of Divorce will be issued by the Court on the Courts portal.
It is also important that you are aware that statutory time limits with respect to applications for Property division and/or Spousal maintenance apply once a Divorce order takes effect.
It is also important to understand the effect of divorce when it comes to Estate planning issues and claims under the Administration and Probate Act 1958 (Vic).
