Divorce Separation

Understanding Divorce in Australia

Applying for divorce marks a significant life transition. In Australia, divorce legally ends a marriage, but it’s important to understand that it’s a distinct process from property division or parenting arrangements. The Family Law Act 1975 governs divorce applications, requiring an ‘irretrievable breakdown’ of the marriage, evidenced by at least 12 months of separation. For Adelaide residents, this process involves the Family Court of Australia.

Navigating the legal landscape can feel daunting, especially during an emotional time. This guide aims to demystify the steps involved for those considering or beginning the divorce application process in Adelaide. Remember, this information is general; individual circumstances often benefit from tailored discussions.

Step 1: Confirming Eligibility for Divorce

Before you can apply for divorce, certain criteria must be met under Australian law. The primary requirement is that your marriage has ‘irretrievably broken down.’ The court accepts this breakdown as proven if you and your spouse have been separated for a continuous period of at least 12 months immediately before filing your application. This separation can occur even if you’re still living under the same roof, provided you can demonstrate that you were living separate lives, such as sleeping in different rooms, not sharing meals, or having separate finances.

Additionally, at least one party to the marriage must be an Australian citizen, ordinarily reside in Australia, or be domiciled in Australia, and intend to continue living here indefinitely. You’ll also need to prove your marriage was legally valid. If your marriage took less than two years, you may need to attend compulsory counselling or seek permission from the court to apply for divorce.

Step 2: Gathering Necessary Documentation

Preparation is key to a smooth application process. You’ll need specific documents to support your divorce application. The most crucial document is your original marriage certificate. If it’s not in English, you’ll need an official translation. If you don’t have your original marriage certificate, you can usually obtain a copy from the Registry of Births, Deaths and Marriages in the state or territory where you were married.

If there are children of the marriage under 18 years old, you’ll also need their birth certificates. While the divorce application doesn’t finalize property or parenting matters, the court needs to be satisfied that proper arrangements have been made for any children before a divorce order can become final. Having these documents ready from the outset can save time and reduce potential delays.

Step 3: Completing the Application for Divorce Form

The formal application for divorce is typically submitted using the ‘Application for Divorce’ form. This form can be completed online through the Commonwealth Courts Portal or obtained from the Family Court of Australia registry in Adelaide. You can apply for divorce either solely (by yourself) or jointly (with your spouse).

A sole application means one party initiates the process and serves the documents on the other party. A joint application means both parties agree to the divorce and sign the application together, which can often simplify the process as service of documents is not required. The form requires details about your marriage, separation, and any children. It’s important to fill out all sections accurately and completely, as any errors might lead to delays or the application being rejected.

Step 4: Filing Your Application with the Family Court

Once your application form is complete and you have all supporting documents, it’s time to file it with the Family Court of Australia. For Adelaide residents, this can be done electronically via the Commonwealth Courts Portal, which is generally the most efficient method. Alternatively, you can submit the physical documents at the Family Court registry located in Adelaide.

There is a fee to file for divorce. If you hold certain government concession cards or are experiencing financial hardship, you may be eligible for a reduced fee or an exemption. Details on current fees and eligibility for fee reductions are available on the Family Court’s website. Ensure you keep copies of all documents filed for your records.

Step 5: Serving the Divorce Application (for Sole Applications)

If you’ve made a sole application for divorce, you are legally required to ‘serve’ a copy of the filed application and any supporting documents on your estranged spouse. This means formally delivering the documents to them to ensure they are aware of the proceedings. Service cannot be done by you directly; it must be carried out by someone else, such as a friend, family member (who is over 18 and not a party to the divorce), or a professional process server.

After the documents are served, the person who served them must complete an ‘Affidavit of Service,’ which is a sworn statement confirming when and how the documents were delivered. This affidavit is then filed with the court as proof of service. There are specific rules around service, especially if your spouse is overseas or difficult to locate. Many people discuss these particular situations with a legal professional to ensure proper procedure is followed.

Step 6: Attending a Court Hearing (if required)

In many cases, if there are no children of the marriage under 18 and the application is a joint one, or if it’s a sole application and service has been proven, a court hearing may not be necessary. The court might grant the divorce ‘on the papers.’

However, a hearing will be required if there are children of the marriage under 18, if the application is opposed by your spouse, or if there are any other issues the court needs to clarify. Hearings for divorce applications are generally brief. If you need to attend, the hearing will typically take place at the Family Court of Australia in Adelaide. Your presence might be required to answer questions about your application or about arrangements for your children.

Step 7: Receiving the Final Divorce Order

Once the court is satisfied that all requirements have been met, including the 12-month separation and proper arrangements for children (if applicable), it will make a divorce order. This order is initially ‘nisi,’ meaning it’s not yet final. The divorce order will become final one month and one day after it is made. This waiting period allows for any appeals or issues to be raised.

Once the order is final, your marriage is legally dissolved. It’s important to remember that while the divorce order ends the marriage, it does not automatically resolve property settlements or parenting arrangements. These are separate legal matters that often need to be addressed either before or after the divorce is finalized. Many people find it helpful to consider these other aspects of Family Law Adelaide alongside their divorce application.

Applying for divorce is a structured legal process. While this guide provides a general overview for Adelaide residents, individual circumstances can vary. Understanding each step and ensuring all requirements are met can help ensure a smoother journey.

Frequently Asked Questions

What is the difference between separation and divorce?
Separation refers to the point when you and your spouse decide your marriage is over and begin living separate lives. Divorce is the legal process that formally ends your marriage. While separation is a factual state, divorce is a legal decree issued by the court. You must be separated for at least 12 months before you can apply for a divorce in Australia. Separation can even occur while living under the same roof, provided you demonstrate a clear intention to end the marriage and live distinct lives, such as separate finances and sleeping arrangements.
Can I apply for divorce if my spouse lives overseas?
Yes, it is possible to apply for divorce even if your spouse resides overseas, but it can complicate the process, particularly concerning service of documents. The Family Court of Australia has specific rules for serving legal documents internationally. You’ll need to ensure your spouse is properly served according to the rules of the country where they reside, or seek an order for ‘substituted service’ if direct service isn’t feasible. These situations often involve additional steps and can benefit from legal guidance to ensure compliance with court requirements.
Do I need a lawyer to get a divorce in Adelaide?
You are not legally required to have a lawyer to apply for divorce in Adelaide, and many people choose to represent themselves. However, the legal process can be complex, especially if there are children involved, if your spouse opposes the application, or if there are issues with service. A Divorce Lawyer Adelaide can help ensure your application is correctly completed and filed, advise on any complexities, and represent you in court if necessary, potentially making the process smoother and less stressful. Many people find it reassuring to have professional support during this time.
How long does a divorce application take to finalize?
The time it takes for a divorce application to finalize can vary, but generally, once an application is filed and served, it typically takes around three to four months for the court to make the initial divorce order. After the court grants the divorce order, it becomes final one month and one day later. This means the entire process from filing to final order usually takes approximately four to five months, assuming there are no complications, delays in service, or requirements for additional hearings.

People Also Ask

What first steps to divorce in Adelaide?
The initial steps for divorce in Adelaide involve ensuring you meet the eligibility criteria, primarily that you’ve been separated from your spouse for at least 12 months. After confirming eligibility, you’ll need to gather essential documents like your marriage certificate. Many people then proceed to complete the ‘Application for Divorce’ form and consider how they will file it with the Family Court of Australia.
How much does it cost to apply for divorce in SA?
The cost to apply for divorce in South Australia primarily involves the court filing fee, which is set by the Family Court of Australia and can change periodically. There may also be additional costs if you require a professional process server to serve documents on your spouse, or if you choose to seek legal assistance from a Divorce Lawyer Adelaide. Fee reductions or exemptions are available for eligible applicants experiencing financial hardship or holding certain concession cards.
Can I divorce if we still live together?
Yes, you can apply for divorce even if you and your spouse are still living under the same roof. This is known as ‘separation under one roof.’ To prove separation while cohabiting, you’ll need to demonstrate to the court that you’ve been living separate lives for at least 12 months. This might involve sleeping in separate rooms, managing finances independently, not sharing meals, and generally having no intimate relationship. It’s often helpful to provide details of these arrangements in your divorce application.
What documents do I need for a divorce application?
For a divorce application in Australia, the primary document you’ll need is your original marriage certificate. If it’s not in English, an official translation will be required. If you have children of the marriage who are under 18 years old, you’ll also need their birth certificates. Any other supporting documents, such as an affidavit for ‘separation under one roof,’ would be prepared as needed based on your specific circumstances.
Is family dispute resolution required before divorce?
Family dispute resolution (FDR) is generally not a mandatory step before applying for a divorce order itself, which only legally ends the marriage. However, FDR is typically a mandatory requirement before you can apply to the court for parenting orders concerning children. While not directly linked to the divorce application, many people find Family Dispute Resolution useful for resolving related matters like parenting arrangements or property settlements, which are often dealt with alongside or after the divorce.
How long after divorce can I remarry?
In Australia, a divorce order becomes final one month and one day after it is made by the court. Once the divorce order is final, you are legally free to remarry. It’s important to wait until this final date has passed before making any plans to remarry, as marrying before your previous divorce is final would mean you are still legally married to your former spouse.