Divorce & Separation

How do I file for divorce in Australia?

To file for divorce, you must register with the Commonwealth Courts Portal, or a lawyer can file on your behalf. You can choose to file either a sole application or a joint application (jointly with your spouse).

If you are the sole applicant, you will be required to properly serve the divorce documents on your spouse and prove that service to the Court. 

In filing for divorce, there are a few other things to consider:

  • You and your spouse must have been separated for at least 12 months and one day
  • Either you or your spouse must be an Australian citizen or have been lawfully living in Australia for more than 12 months and intend to continue to do so
  • You can be separated and living under one roof, but you must evidence this with a signed affidavit (sworn testimony) that provides details of why you say you have been separated for 12 months.

Negotiations about property and children can begin as soon as the marriage has broken down. If you want to ask the Court to decide your property settlement case, you should file an application within 12 months of the divorce. 

Do I have to go to court to get divorced?

If there are no children from the marriage, then you may not need to attend a formal court hearing for your application to be granted. However, if there are children involved under the age of 18 years, then you or your lawyer must attend court. 

Do I need a lawyer to get divorced?

No, you do not need a lawyer to get divorced.

I’m not married – how do I separate from my partner?

If you aren’t married to your partner, but you have lived together as a couple on a genuine domestic basis, you may be considered to be in a de facto relationship. Factors the Court is required to consider in deciding whether to classify your relationship as de facto include:

  • Whether or not you have shared a residence
  • Whether or not a sexual relationship exists
  • Whether there are any children in the relationship
  • Any other factor or circumstance the Court decides is relevant.

You do not need to go through any formal process, such as applying for divorce, to end a de facto relationship. 

However, issues arising from the de facto relationship, such as the accumulation of assets and the care of children, are provided for under the Family Law Act. Applications to the Court in relation to an adjustment of property interests should be made within two years of the breakdown of a de facto relationship. 

How long does it take to get divorced?

Once you have prepared your Application for Divorce, you need to lodge the application with the Court. You will be given a Court hearing date – probably around 2 – 3 months into the future. During your divorce hearing, if the Court is happy with the paperwork submitted and the procedural steps taken, and is satisfied that there are appropriate arrangements in place for any relevant children, it will issue a Divorce Order. The Divorce Order will become final (and you will receive a copy of it) one month later. 

How much does it cost to get divorced?

The cost of a divorce application is currently $940.00. This fee is set by the Federal Government and is increased every two years. If you hold a concession card or you cannot afford to pay the fee, you may be eligible for a reduced fee of $310.00. You can find the criteria for a reduced fee on the Federal Circuit Court website.

In the case of a sole application for divorce, where a divorce is not jointly made, there will likely be a cost to serve the application on your former spouse through a person known as a process server. Depending on the geographical area and other factors, it will likely cost you around $100 to serve.

What happens if my spouse refuses to get divorced?

If your spouse does not agree to obtain a divorce, a sole application for divorce may be made. The Court will need to be satisfied that the spouse has been notified and given fair opportunity to respond. 

How do I prepare for court?

If you have engaged a lawyer, they will be able to talk you through the process. 

If you have not engaged a lawyer, make sure you have all your facts ready, whether you are looking to settle matters of property or arrangements for your children. Try to think about what the judge needs to know in order to help you and the other party resolve the dispute. You should get to court early, so you do not run the risk of keeping the Court waiting or having Court Orders made in your absence. 

Who am I allowed to talk to during Family Court proceedings?

During Family Law proceedings, a good rule of thumb is that you should only be talking about the information disclosed in your case with your lawyer. A lot of the information revealed in Family Law proceedings is confidential, and you cannot share it with anyone without the Court’s specific permission. Disseminating information about Family Law proceedings to the public, or a section of the public, is an offence punishable by imprisonment.

Parenting & Family

What is mediation, or family dispute resolution?

Family dispute resolution is a process similar to a mediation in which an independent person, accredited as a Family Dispute Resolution Practitioner, helps people in dispute – most commonly a separating or separated couple.

The Family Dispute Resolution Practitioner will try to resolve the dispute between two parties – and this most commonly involves disputes relating to arrangements for children. The aim is to help the couple reach an agreement without taking the matter to Court.

It is generally compulsory for people to attempt Family Dispute Resolution before applying to the Court for Orders concerning the care of children. There are some exceptions, such as cases of urgency or abuse or family violence. The Australian government funds some Family Dispute Resolution services. In the course of Family Dispute Resolution, what is said is generally confidential (and cannot be disclosed to the Court). 

What is spousal support/maintenance?

Spousal maintenance is financial support provided by a person to their former spouse. A Court Order for spousal maintenance creates an obligation on the paying party that will extend over a period into the future. This financial support is commonly provided at regular intervals but may also be paid as a lump sum in advance.

Spousal maintenance may be ordered by a Court when one party does not have the means to meet their reasonable living expenses, and the other party has the capacity to pay. The right to claim spousal maintenance is separate from the right to claim for an adjustment of property interests, but one may impact the other.

What are the different custody outcomes?

“Custody” is not a formally used term in Australia anymore. Instead, we talk about three things:

1.Who has “Parental Responsibility” for a child

“Parental Responsibility” means all the duties, powers, responsibilities, and authority that parents have in relation to children by law. This includes the responsibility to name the child, decide what school the child attends, decide what primary medical treatment the child receives, and decide what religious education or upbringing the child receives.

The parents of a child automatically have Equal Shared Parental Responsibility for the child. Still, the Family Law Courts have the power to alter the allocation of Parental Responsibility. For example, the Courts can order that one parent has Sole Parental Responsibility, or they can order that someone who is not a parent of the child has Parental Responsibility for them.

2. With whom the child lives

When formal arrangements are made for the care of a child, it is common to appoint a person with whom the child is to live. That person will have responsibility for the day-to-day care of that child at all times except when the child is to “spend time” with someone else.

Most commonly, these formal arrangements are made between or in respect of the two parents of a child, who no longer live with each other. There will often, then, be a parent with whom the child lives and a parent with whom the child spends time.

3. With whom the child spends time (and when that time is to be)

When formal arrangements are made for a child to live with one parent and spend time with the other, the child’s time will be specified. This document will set out the routine for years to come. It’s common to have different arrangements for school terms and for school holidays. School terms will often be allocated on a fortnightly rotational roster (so that the child can spend alternate weekends with each parent). School holidays are generally worked out in block periods to enable the child to go away on holidays with each of their parents. There may also be separate arrangements for special occasions, such as birthdays and Christmas.

What is a child dispute conference?

A Child Dispute Conference is a part of the Court process for parenting matters. It’s a meeting with a Family Consultant who the Court employs. Generally, the only people in attendance at the meeting are the parties to the dispute and the Family Consultant assigned to the case.

A Family Consultant is not a judge. The Court has employed the person in this role because of their qualifications and experience in social work or psychology, and especially because of their experience working with children and families. Their job is to listen to the parties and make recommendations to the Court. What is said in a Child Dispute Conference is not confidential. Child Dispute Conferences do not take place in all parenting matters, but if a judge orders the parties to attend one of these meetings, the parties are required to do so.

What does ‘best interests of the child’ mean?

The term ‘best interests of the child’ is often referred to in parenting disputes. That’s because the law says that it is the single most crucial factor to consider when making any Order about the care of children. It’s referred to as the “paramount consideration”. So how does the Court determine what actually is in the best interests of the child? It has to follow the law, which sets out a list of factors the Court must consider in answering this question, but specifies that the most important factors are:

A. The benefit to the child of having a meaningful relationship with both of the child’s parents; and 

B. The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

Where A and B conflict, protection of the child is the most important factor and will be prioritised.

What is an independent children’s lawyer?

An Independent Children’s Lawyer (ICL) is a lawyer appointed by the Court to represent the child’s interests. This lawyer is independent of the parties to the proceedings (usually the parents) and is arranged through Legal Aid. An ICL is not appointed in all parenting cases, just cases where there is a reason to make the appointment, such as allegations of child abuse, a high level of conflict between the parties, or psychological illness.

The ICL’s role is to form an independent opinion of what is in the child’s best interests and represent that opinion to the Court while also protecting the child from trauma. In determining their view, the ICL will read the documents submitted and produced and often meet with the child. If the child tells the ICL what they want, the ICL’s job is to tell the Court what the child has said, but the ICL doesn’t have to agree with it and will tell the Court if they don’t. The ICL can answer any questions the child has about the Court proceedings and will often be the person who explains the Court’s decision to the child.

Most Court proceedings are ended by the parties reaching an agreement. In cases where an ICL has been appointed, the ICL is one of the parties – so any agreement reached by the parties must also be agreed to by the ICL for the proposed agreement to be submitted to the Court by consent.

What is a family report?

A Family Report is a more extensive report prepared by a Family Consultant as part of the Court process for Parenting disputes. The report makes independent recommendations to the Court about the issues in dispute and how the child/ren’s best interests can be met. The report is prepared after a Court has ordered it to be done. In preparing the report, the Family Consultant reads the material submitted by each of the parties and any documents produced to the Court (such as by way of subpoena). The Family Consultant also conducts a series of interviews with the parties to the proceedings, the child/ren, other members of the parties’ households, and any other person that the Family Consultant considers relevant. These interviews are usually conducted in one day.

Once prepared, the report is submitted to the Court. The parties to the proceedings are not given a copy of the report until the Court formally releases it to them. Family Reports are confidential documents and can only be shown to or talked about with persons whom the Court has expressly authorised. If the case proceeds to trial, the Family Consultant will be required to attend and be available to be questioned on their report. 

Sometimes, instead of having a Family Report prepared by a Family Consultant, the parties can ask the Court to appoint an expert not employed by the Court, such as a psychiatrist or a clinical psychologist, to prepare a report. This will be at the parties’ expense, whereas a Family Report is funded through the Court.

Property

How do I know if my spouse is disclosing all of their assets?

All parties to Family Law Property Settlement cases have a legal obligation to provide complete and frank financial disclosure. This means that they are required by law to disclose all of their assets, whether they are held in Australia or another country. This includes any assets held in someone else’s name on their behalf and assets they have transferred to another person.

Failure to disclose assets can have consequences such as the Court ordering the non-disclosing party to pay the other party’s legal costs, or the Court making an assumption about the non-disclosing party’s assets and making Orders based on that assumption, or the Court setting aside the Property Settlement years down the track.

If you suspect that your spouse is hiding assets from you, think about who else might have a record that proves it, such as a bank. You can ask the Court to require that person or entity to produce those records to the Court for your case. Once Final Orders are made in Family Law Property Settlement proceedings, the Orders are usually final (as long as they are not appealed within the required timeframe)

What is considered property in a separation?

The short answer is, everything. Property in this context means assets. There is no such thing as assets that are not relevant. There is no such thing as “his” and “her” property. Instead, when a couple has separated, a single pool of assets is available for distribution between the parties. Into that pool is included all assets to which the parties are, or either party is entitled, be they assets of which the parties currently have possession or assets to which they have a right (even though they may not be holding it currently). It doesn’t matter whether the asset is held by the parties jointly or is held in one party’s name only – it all goes in.

Property includes:

  • Real estate
  • Investments, such as shares
  • Cash and funds at a bank
  • Cars
  • Artwork
  • Personal possessions and household contents
  • Superannuation
  • An interest in a trust
  • An entitlement in a deceased Estate

What is a property settlement?

A Property Settlement is the legal way in which a couple’s assets and liabilities are divided between them following the breakdown of their relationship. When a marriage or a de facto relationship comes to an end, it may be the case that the couple’s assets are not owned fairly. For example, more than a fair share may be legally registered in one partner’s name – perhaps due to one member of the couple acting as the income-earner during the relationship and the other looking after the home and children. It may also be the case that single assets, such as a house, may be registered in both parties’ names, which is no longer practical given that the couple no longer wishes to live in the house together.

The Family Law Act in Australia creates a method for solving these problems. That method is by going through and achieving a Property Settlement. Through a Property Settlement, adjustments may be made to who owns what. The assets owned by a couple are separated and distributed between them in fairness following the breakdown of their relationship.

Most of the time, the separating couple reaches an agreement between themselves, often with the assistance of lawyers, about how to divide their assets and what their Property Settlement will look like. If they can reach such an agreement, they can jointly ask the Family Court to approve the agreement (to be legally finalised) or document it in a special kind of written agreement that requires each party to obtain a certificate from a lawyer.

If the separating couple can’t reach an agreement in relation to their Property Settlement, they can ask the Family Law Courts to decide for them.

Can my spouse get rid of assets?

If you’re worried that your spouse may dispose of assets – perhaps by transferring them to someone else to stop you from getting them – you should see a lawyer immediately.

There are some mechanisms for dealing with this situation. You can ask the Court to make Orders preventing your spouse from disposing of assets – such as restraining your spouse from taking specific steps or by ordering your spouse to deposit funds into a trust account.

If your spouse has already transferred an asset to someone else, the Court may be able to undo the transfer. If your spouse has already transferred an asset to someone else and it is not possible to get it back, the Court has the power to make orders compensating you for the lost asset from the assets that are remaining.