Divorce Lawyers Toowoomba

Separation is the process of ending an intimate partner relationship, whether a marriage or de facto relationship.

While there is no need to officially register a separation, you must take note of the date of separation for other proceedings you might wish to pursue.

Divorce is the legal process of ending your marriage.

The Federal Circuit and Family Court of Australia (the Court) has the power to deal with your divorce.

Divorce in Australia follows the no-fault principle. This means that the Court does not consider the reason for initiating the divorce proceedings. Neither party needs to prove that the other did (or did not) do something which caused the breakdown of the marriage, just that the marriage has broken down irretrievably.

Married couples who wish to divorce must be separated for at least 12 months before lodging their divorce application. In addition, there must be no reasonable likelihood of resuming married life. It is possible to live together in the same home and still be legally separated (“separation under the one roof”).

If you have been married less than two years and want to apply for a divorce, you must either:

• Attend counselling with a family counsellor or nominated counsellor to discuss the possibility of reconciliation with your spouse; or
• If you have not attended counselling, seek the permission of the Court to apply for a divorce.

If you have made a sole application and have a child of the marriage under 18 years, you must attend the Court hearing.

In all other instances, provided you set out the circumstances of your separation and file the required affidavits with the Court, you do not need to attend the Court hearing.

If the Court requires more information, it will adjourn the case and direct you to file additional material or attend the Court hearing.

The granting of a divorce does not determine issues relating to financial support, property distribution, or arrangements for children. It simply recognises that the marriage has ended.

The granting of a divorce activates the limitation period (time limit) for applying to the Court for orders relating to financial matters. Most financial/property proceedings arising from the breakdown of a marriage must be started within 12 months of the divorce order taking effect unless otherwise agreed with the other party.

Separation under one roof refers to married parties who separate but continue to live in the same home. It may be for a few days, weeks, months, or years following separation.

If you and your spouse lived in the same home during part or all of the required 12 months separation period, you need to provide extra information to the Court.

An Application for Divorce is the document you must complete and file in the Court to initiate divorce proceedings.

Married couples who wish to divorce need to be separated for at least 12 months before lodging their divorce application. In addition, there must be no reasonable likelihood of resuming married life. It is possible to live together in the same home and still be legally separated (“separation under the one roof”).

Divorce in Australia follows the no-fault principle. This means that the Court does not consider the reason for the divorce to be relevant. Neither party needs to prove that the other did (or did not) do something which caused the breakdown of the marriage, just that the marriage has broken down irretrievably.

If you have been married for less than two years and want to apply for a divorce, you must either:

• Attend counselling with a family counsellor or nominated counsellor to discuss the possibility of reconciliation with your spouse; or
• If you have not attended counselling, seek the permission of the Court to apply for a divorce.

Divorce in Australia follows the no-fault principle. This means that the Court does not consider the reason for the divorce to be relevant. Neither party needs to prove that the other did (or did not) do something which caused the breakdown of the marriage, just that the marriage has broken down irretrievably.

You must complete an online Application for Divorce and pay a filing fee using the Commonwealth Courts Portal to apply for a divorce. There is a step-by-step guide on the Court website.

Depending on the circumstances, you may also be required to file additional documents with your Application.

You are known as “the applicant” if you apply for the divorce yourself (sole Application). The other party is known as “the respondent”.

If you file a sole Application, you must serve the Application on the other party. There is a step-by-step guide about the service of your divorce application on the Court Website.

If you are applying for a divorce with your spouse (joint Application), both parties are known as “joint applicants”.

• You can apply for a Divorce 12 months from the date you separated from your spouse.
• You will need to satisfy the requirement that the marriage has permanently broken down, and there is no reasonable likelihood of resuming married life.

You can apply for a divorce after being separated for 12 months.

The requisite 12-month period of separation does not have to be continuous. You can add together the periods of separation before and after a short resumption of cohabitation and achieve the required 12-month threshold. The resumption of cohabitation must be on one occasion only, for up to 3 months.

If you have been married less than two years and want to apply for a divorce, you must either:

• Attend counselling with a family counsellor or nominated counsellor to discuss the possibility of reconciliation with your spouse; or
• If you have not attended counselling, seek the permission of the Court to apply for a divorce.

If you want to file an Application for divorce and have been married less than two years, you must file a counselling certificate. To obtain a certificate, you will need to attend counselling.

The two years are calculated from your marriage date to the date of applying to the Court for a divorce. You and your spouse must also have been separated for at least 12 months before applying for a divorce.

A court filing fee must be paid when the Application for Divorce is filed with the Court.

The standard fee is $1,060.00.

A reduced fee of $350.00 applies in certain circumstances. Examples are:

• You are a holder of certain concession cards issued by the Department of Human Services, or
• You have been granted Legal Aid.

Also, you may be eligible for a reduced fee if your financial circumstances are such that payment of the specified fee would cause you financial hardship.

Same-sex couples are treated the same as other married couples.

From 9 December 2017, same-sex marriage became legal in Australia. Therefore, sex and gender no longer affect the right to marry under Australian law.

Further, from 9 December 2017, Australian law recognises existing and future same-sex marriages solemnised overseas under the law of a foreign country where the marriage is valid under that law.

Same-sex couples whose marriages are recognised can access Australia’s family law system, including divorce, regardless of when the marriage was solemnised.

Same-sex couples who divorce overseas on or after 9 December 2017 will have their divorce recognised in Australia in the same circumstances as any other married couple.

You can apply for a divorce in Australia 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 a grant of Australian citizenship; or
• Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

An application for divorce can be made by you, your spouse, or by both parties jointly.

You need to satisfy the Court that you and your spouse have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life. It is possible to live together in the same home and still be separated. This is known as being separated by living under one roof.

Same sex married couples are treated the same as other married couples. They can apply for a divorce if the marriage is recognised in Australia and meets the requirements for divorce under the Family Law Act 1975.

If there are children aged under 18, a Court can only grant a divorce if it is satisfied that proper arrangements have been made for them. You will be asked to provide information about any children of the marriage or children treated as family members. You will need to provide sufficient detail about how the children spend time and communicate with each parent. You will also need to provide information about the children’s education, health, and financial support.

• If you were married overseas, you can apply for a divorce in Australia if either you or your spouse:
• Regard Australia as your home and intend to live indefinitely in Australia; or
• Are an Australian citizen or resident; or
• Are an Australian citizen by birth or descent; or
• Are an Australian citizen by grant of Australian citizenship; or
• Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

You must provide the Court with a copy of your marriage certificate. A marriage certificate that is not in English must be translated. You will need to file an English translation and an affidavit from the translator.

You can apply for a divorce if you were married overseas, and your foreign marriage is recognised in Australia. In that case, you must provide the Court with a copy of your marriage certificate.

If your marriage certificate is not in English, you must upload an English translation. You will also need to provide an affidavit of translation of the marriage certificate from a certified translator.

The principle of no-fault divorce applies in Australia. This means that a court does not consider why the marriage ended.

The only ground for divorce is that the marriage has broken down irretrievably, that is, that there is no reasonable likelihood that you will get back together. You must have been separated for at least 12 months and one day to satisfy the Court that the marriage has broken down irretrievably.

If there are children aged under 18, a Court can only grant a divorce if it is satisfied that proper arrangements have been made for them. You will be asked to provide information about any children of the marriage or children treated as family members. It will be necessary to provide sufficient detail about how the children spend time and communicate with each parent. In addition, information must be supplied about the children’s education, health, and financial support.

If you have been married less than two years and want to apply for a divorce, you must either:

• Attend counselling with a family counsellor or nominated counsellor to discuss the possibility of reconciliation with your spouse; or
• If you have not attended counselling, seek the permission of the Court to apply for a divorce.

Once you file your Application for divorce with the Court, you will be notified of the date and time of your divorce hearing. You will also be advised of the name of the Registrar, who will hear and determine your Application.

A few weeks before the hearing, you will receive correspondence from the Court explaining the method and details for your hearing.

Divorce hearings are conducted electronically via video link (using Microsoft Teams) before a Deputy Registrar or Judicial Registrar of the Court. This means you will not need to attend the Court registry in person or have a lawyer appear on your behalf.

Service is the process of sending or giving court documents to a party. The relevant documents must be filed with the Court before service can occur. Service ensures that all parties have received the documents filed with the Court.

If, after making all reasonable attempts, you cannot serve your divorce Application on your spouse, you can apply to the Court for:

• An order to serve the document in a way other than personal service; or
• Dispensation of service.

Substituted service allows you to serve court documents on a third person who will bring them to your spouse’s attention.

Dispensation of service means that you will not need to serve documents on your spouse. The Court must be satisfied that you have made all reasonable attempts to find your spouse.

Court attendance (electronically) is only required if:

• You have filed a sole application, and there is a child of the marriage* aged under 18 years at the time of filing;
• You have indicated that you wish to attend in the Application;
• Either party has objected to the divorce being heard in the absence of the parties; or
• The respondent filed a Response to divorce opposing the Application.

You may also be required to attend the hearing if you cannot find the respondent to serve the court documents. In that case, you will need to apply for an order for substituted service or a dispensation of service.

It is advisable to attend your hearing if you are required to provide additional affidavit material to explain particular circumstances of your relationship, such as:

• If there has been a period of separation under the same roof;
• If you have been married for less than two years, or
• If there has been a change in circumstances since you filed your Application.

*A child of the marriage includes:

• Any child of you and your spouse, including children born before the marriage or after separation;
• Any child adopted by you and your spouse; or
• Any child treated as a member of your family before your final separation (a stepchild or foster child).

Once you file your Application for divorce with the Court, you will be notified of the date and time of your divorce hearing.

You will also be advised of the name of the Registrar, who will hear and determine your Application. A few weeks before the hearing, you will also receive correspondence from the Court explaining the method and details for your hearing.

Once your divorce is granted, it will become final one month and one day later unless a special order is made by the Court to shorten that time.

Shortening the period for a divorce to become final is only permitted by the Court in exceptional circumstances.

Your divorce order will be available for you to download from the Commonwealth Courts Portal the next working day after the order has become final.

It will take at least 4 months to obtain a final Divorce Order. It will take longer if there are difficulties, such as serving your Application on the other party.

If your spouse has filed an application for divorce and you do not want the divorce granted, you must complete, file, and serve a Response to divorce. Also, you must appear in person on the hearing date.

If you have been separated for more than 12 months, there are few opportunities to oppose a divorce application. You can only resist the divorce where:

• There have not been 12 months separation as alleged in the Application; or
• You allege that the Court does not have jurisdiction (legal power or authority).

You need to set out the grounds for seeking the dismissal in the Response to Divorce.

If you file a response, you should attend the divorce hearing. If you do not appear as required, the Court may decide the divorce application in your absence.

If you want the divorce granted but disagree with the facts in the Application for divorce, you may file and serve a Response to divorce. In that document, you need to state what facts are in contention.

The errors might, for example, be that dates of birth are incorrect, or the details regarding the children have changed.

If you file a Response to divorce, you must attend the divorce hearing.

The granting of a divorce does not decide issues about property or parenting arrangements for your children.

You should not make firm plans to marry on a specific date until the divorce order is finalised. You may, however, complete and lodge a Notice of Intended Marriage with an authorised celebrant before the divorce order is finalised.

If you intend to remarry, you must lodge A Notice of Intended Marriage with an authorised marriage celebrant at least one month before the marriage is solemnised. The authorised celebrant must sight a copy of the divorce order before the wedding.

In most cases, the divorce order takes effect one month and one day after the divorce is granted. You should not assume the divorce will be given at the first court hearing. For example, you may be told at the hearing that you need to provide more information.

Your divorce will only be granted if all of the requirements for the proceedings are met.

If your divorce is not granted, the Court will contact you explaining why. In addition, you will be advised what further steps are required to ensure the divorce will proceed on the next date.

If the divorce is granted, it will be finalised one month and one day later, unless a special order is made by the Court to shorten that time.

You will be able to access your divorce order online via the Commonwealth Courts Portal the day after it is finalised.

You are not legally required to adopt your spouse’s surname when you are married, and therefore, you can use your maiden name even before your divorce.