As most people know, Australia applies the no-fault divorce principle. A couple seeking a divorce is not required to provide the court with evidence of the other party’s fault; they only need to show that the marriage has broken down irretrievably and that they have been separated for at least 12 months before applying for divorce. But does this mean getting divorced in Australia is simple and that you don’t need to engage a divorce lawyer? Today we’ll walk you through whether you need a divorce lawyer and the benefits of doing so.
What is the divorce process in Australia?
First, we need to understand the basic divorce process in Australia. To obtain a divorce in Australia, the Australian courts must have jurisdiction over your marriage. This means at least one party must be an ordinary resident of Australia (including citizens, PR holders, or holders of another substantive visa such as a work visa or student visa) and must have lawfully resided in Australia for the 12 months preceding the divorce application.
There are two ways to apply for a divorce in Australia:
- A “joint application” made together by both spouses.
- A “sole application” made by one party.
If the couple jointly applies for divorce, some steps can be skipped. Only one party needs to prepare the required divorce documents and complete the application, and the other party signs off once they have verified everything is correct. A court decision is still required, but in most cases the parties are not required to attend court.
A sole application, however, is considerably more complex. Typically, the applicant signs the application, and it — together with the other supporting documents — must be formally served on the other party in accordance with the relevant regulations. Once one party applies for divorce alone and the affidavit and supporting documents have been filed with the court, the documents to be served must be personally served on the other party at least 28 days before the hearing date (or 42 days if the other party is overseas).
What aspects of an Australian divorce are easily overlooked?
Divorce in Australia is not as simple as it may seem. There are quite a few conditions and supporting documents required, and if the requirements are not met, the court may adjourn the matter — something self-represented applicants are especially prone to.
In real cases, many people who don’t engage a lawyer prepare and file their own materials and attend court on their own, only to find that — for various reasons such as failing to complete the required documents or procedures — they cannot answer the judge’s questions and the matter is adjourned, meaning the divorce cannot be finalised on the day or within a reasonable timeframe. Examples like this are very common. It is not only a waste of time and energy, but the process also fails to conclude smoothly and places considerable stress on the applicant.
In addition, there are many details to watch out for in an Australian divorce, such as length of separation, length of marriage, and the divorce paperwork itself, as well as subsequent issues like property settlement and child custody, which can make divorce considerably more complex and difficult.
What can a divorce lawyer do for you?
When handling a client’s divorce matter, a divorce lawyer provides professional assistance in many areas:
1. Proof of the marriage
Generally speaking, a marriage certificate is sufficient proof. However, if your marriage certificate is not in English, it must be translated. If you currently don’t have a marriage certificate, a family law specialist can help you obtain one.
2. Proof of separation
Having been separated for 12 months is a prerequisite for applying for divorce. How do you prove the two of you have been separated? Can living under the same roof still count as separation? A divorce lawyer can analyse your specific circumstances and provide the best solution.
3. Child custody and care
In Australia, parenting arrangements for children and divorce are dealt with separately, but in practice many couples delay their divorce because parenting issues remain unresolved. If there is a dispute over parenting arrangements, a divorce lawyer can also assist you in resolving it.
4. Serving the divorce application on the other party
For a sole divorce application, once the application materials are prepared, the divorce application must be served on the other party in accordance with the requirements. During this process, a divorce lawyer can help you check that the returned divorce application documents have been correctly completed.
5. Attending court
Whether attendance at court is required depends on the specific circumstances of the applicant. If a court appearance is required, it is highly recommended to engage a divorce lawyer to help you maximise your prospects at the hearing.
6. Document review
If you choose to apply for divorce yourself and want to make sure the paperwork is watertight, so the process isn’t delayed by minor issues, a divorce lawyer can review the documents and provide professional advice.
When do you need a divorce lawyer?
Even when both parties agree to the divorce, engaging a divorce lawyer for guidance is recommended to minimise unnecessary delays caused by issues such as incomplete documentation. In more complex situations, the assistance of a divorce lawyer is even more important.
Common complex divorce situations include, but are not limited to:
- Limited English proficiency;
- Not being familiar with the various provisions of Australian family law;
- Marriage of less than 2 years;
- The couple has children together;
- Separation under the same roof;
- Reconciliation after a period of separation;
- A seriously broken-down relationship with no communication;
- Not knowing the other party’s contact details or address, or being unable to locate them at all;
- The other party deliberately avoiding service of the divorce documents after being notified of the application;
- Special family circumstances (for example, family violence);
- Having married outside Australia but wishing to apply for divorce in Australia;
- One party to the divorce application not residing in Australia, and so on.
Final thoughts
There are many blind spots to be aware of when divorcing in Australia. For couples without any special circumstances, the divorce process may be relatively straightforward. However, the process is often affected by all sorts of issues. And in our minds, property and children are closely tied to marriage, so once the matter involves complex issues such as spousal maintenance, child custody, joint matrimonial property, or debts and liabilities, divorce becomes even more difficult. These matters are hard to handle on your own, and we recommend seeking professional advice and assistance from a lawyer.
