How to get a Divorce

Jan 13, 2022 11:17:13 PM

When a marriage breaks down, it’s a stressful and painful time for everyone involved. That’s why accessing specialist advice on how to get a divorce is so important. Experts in family law, East Coast Law guides you through divorce proceedings, parenting arrangements and financial settlements to help you move on with the rest of your life. Our experienced team helps you navigate separation and divorce, offering care, compassion and certainty during a difficult time.

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What is the easiest way to get divorced?

The easiest way to get divorced in Australia is to engage a divorce law specialist to guide you safely through the process. While it’s possible to lodge an application for divorce without legal representation, this comes with certain risks. For instance, if you fail to lodge the correct paperwork within the set timeframes, this will set back the process. Without expert legal advice, you also run the risk of not having your rights represented in discussions around parenting and financial orders. The easiest way to get divorced is to talk to an expert in divorce and family law.

Can I get a divorce without my spouse knowing?

You can initiate divorce proceedings without your spouse knowing by making a sole application, however, your spouse is required to be notified as part of the process. If you submit a sole application, this needs to be personally served on your spouse. If they oppose the application, they have the right to file a response prior to the scheduled hearing. As long as you can prove the marriage has irretrievably broken down and have met all other legal requirements, you will be granted a divorce, even if this is opposed by your spouse.

How do I ask for divorce peacefully?

Broaching the subject of getting a divorce can be daunting but here are a few tips to help you ask for a divorce peacefully.

  • Know your objective - go into the conversation clear on why you want a divorce, the reasons for your decision and whether you are open to reconciliation.
  • Be prepared - think about the words you will use, how you will explain your decision, where you will have the discussion and why you think this is the best way forward.
  • Take the time to listen - after having your say, be prepared to listen to your spouse, acknowledge their response and answer their questions.
  • Accept responsibility - it’s important to recognise your role in suggesting this course of action. Use I statements to explain how you feel rather than blaming your spouse.
  • Have empathy - you may have been feeling this way for a while but the idea of divorce might be news to your spouse - be aware they may take some time to process the news.

What happens when one spouse doesn't want a divorce?

A divorce doesn’t have to be agreed to by both parties. While a joint application is signed by both parties, a sole application can be lodged by one spouse, without having to be signed by the other. In this case, the application needs to be served on the other spouse at least 28 days before the divorce hearing. If there are children under 18 involved, the filing spouse will need to attend the divorce hearing to discuss interim parenting arrangements.

What do I need to do to get divorced?

There are several steps involved in getting a divorce. Here’s an overview of what you need to do to get divorced in Australia.

  • Provide proof of your marriage
  • Show that your marriage has irretrievably broken down
  • Prove you have been separated for at least 12 months and 1 day
  • Complete and lodge an application for divorce 
  • Receive your court hearing date
  • Sign an Affidavit for eFiling Application (Divorce) 
  • Serve the application on your spouse (if making a sole application)
  • File the service documents (if making a sole application)
  • Attend the court hearing (if applicable)
  • Receive the Certificate of Divorce

Note: parenting and financial settlement arrangements are separate to the divorce process and need to be finalised within 12 months of your divorce.

Does it matter who initiates a divorce?

Australia operates under a ‘no fault’ system when it comes to divorce, so blame doesn’t have to be apportioned to one or both parties for a marriage to end. This means it doesn’t matter who initiates a divorce or why the marriage has irretrievably broken down. Both sole and joint divorce applications are accepted by the court, allowing either or both spouses to begin the legal process of ending their marriage.

What to do before telling your spouse you want a divorce

Before telling your spouse you want a divorce, it’s a good idea to do the following:

  • Understand your eligibility for divorce. You need to have proof of marriage, been separated for at least 12 months and 1 day and be able to prove your marriage has irretrievably broken down.
  • Grab a copy of your marriage certificate. If it’s in another language, it will need to be translated into English before you make an application.
  • Get copies of your financial documentation to understand your financial position.
  • If you have been living under the same roof during your separation, ensure you have proof that your marriage has broken down (i.e. family and friends know you have separated, you sleep in separate rooms, etc).
  • Update your will and superannuation beneficiary information.

Seek professional advice from a divorce law specialist like the team at East Coast Law.

What is the divorce process in Australia?

The divorce process in Australia takes on average around four months from start to finish. In many cases, you won’t need to attend court, especially if you don’t have kids under the age of 18. Depending on whether you lodge a joint application or go it alone, there are different steps in the process. That’s why it’s vital to seek legal advice before you start the divorce process.

Filing a joint application

This involves both parties agreeing to file the application together. The advantage of making a joint application is there is no requirement to attend the court hearing as all joint applications are dealt with in the absence of the parties, plus there is no requirement to serve any documents.

    1. Check your eligibility. You must be currently legally married, separated for more than 12 months, the marriage must have irretrievably broken down and you or your partner must be an Australian citizen, permanent resident or have lived here for over 12 months.
    2. Complete an application for divorce form. This can be completed online and must be signed by both parties as well as signed and witnessed by a solicitor or a Justice of the Peace (JP).
    3. File the application. The completed application will need to be filed online using the Commonwealth Courts Portal. You will need to supply all required documentation plus pay the applicable application fee.
    4. Receive your court hearing date. After the application has been lodged and the application fee paid, you’ll receive confirmation of the hearing date.
  • Affidavit for eFiling Application (Divorce). Before the hearing, you’ll need to complete and lodge an affidavit which needs to be sworn or affirmed before a solicitor or JP.
  1. Court hearing. Attendance is not required for joint applications although you can still request to attend.

Receive the certificate of divorce. Once the divorce order is granted, the divorce will become final one month and one day following the hearing.

Filing a sole application

This involves one party initiating the divorce process and making a sole application to legally end the marriage. Sole applications must be personally served on the other party at least 28 days before the assigned divorce hearing date.

    1. Check your eligibility. You must be currently legally married, separated for more than 12 months, the marriage must have irretrievably broken down and you or your partner must be an Australian citizen, permanent resident or have lived here for over 12 months.
    2. Complete an application for divorce form. This can be completed online and must be signed and witnessed by a solicitor or a Justice of the Peace (JP).
    3. File the application. The completed application will need to be filed online using the Commonwealth Courts Portal. You will need to supply all required documentation plus pay the applicable application fee.
    4. Receive your court hearing date. After the application has been lodged and the application fee paid, you’ll receive confirmation of the hearing date.
    5. Affidavit for eFiling Application (Divorce). Before the hearing, you’ll need to complete and lodge an affidavit which needs to be sworn or affirmed before a solicitor or JP.
  • Serve the application on your spouse. A sealed copy of the affidavit and application will need to be served on your spouse at least 28 days prior to the hearing date.
  1. File the service documents. You will need to supply proof that the application has been personally served by filing an affidavit of service.
  2. Attend the court hearing. If you share children under 18 with your spouse, you will need to attend the court hearing to discuss parenting arrangements.
  3. Receive the certificate of divorce. Once the divorce order is granted, the divorce will become final one month and one day following the hearing.

How much does it cost to get a divorce?

According to research commissioned by Real Insurance, Australians spent almost $45 million in 2018 on divorce application fees. Meanwhile, the legal costs associated with divorce continue to cost Australians approximately $3.7 billion each year.

If you want to work out how much it might cost you to get a divorce, consider the following expenses:

  • Divorce application filing fee (currently $940)
  • Solicitor costs (anywhere from under $1000 to $2500)
  • Service fees (for sole applicants - approx $200)
  • Response to application (for parties opposed to divorce - $365) 

There are additional expenses to consider when looking beyond the divorce to finalise parenting and financial arrangements including:

As a guide, most joint application divorces will cost between $2500 to $4000. 

How long does it take to file a divorce in Australia?

Filing a divorce in Australia doesn’t usually take all that long. From start to finish, the average time to complete the divorce process is around four months. This timeframe takes into account filing the application, lodging all required documentation, serving documents (if required), supplying affidavits, awaiting the divorce hearing and waiting one month and one day following the hearing for the divorce to be finalised. If incomplete information is supplied or documentation is not lodged within the court’s stated timeframes, divorce proceedings may take longer.

Choosing a divorce lawyer

To ensure your divorce proceeds smoothly, it’s important to choose a divorce lawyer with the experience, compassion and authority to guide you through this difficult time. While you can initiate divorce proceedings by yourself, it’s best to engage a professional family law expert to ensure you and your family are looked after and protected throughout the process.

The experienced team at East Coast Law are ready to help you navigate the legalities of divorce so you can get on with your new life. Experts in the divorce process, we can smooth the way for you and also assist with parenting and financial agreements. If you are contemplating divorce and looking to choose a divorce lawyer, call a member of our team today on 1300 327 826.

About the author

Katie Jolliffe is an associate solicitor at East Coast Law specialising in Family Law, Wills & Estates, Criminal Law, Juvenile Justice, Traffic Law and Licence Appeals. A natural advocate, Katie has experience attending and representing clients at the Federal Circuit and Family Court of Australia in Newcastle and Local and District Courts around the Newcastle, Lake Macquarie and Hunter Valley areas. 

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