We know divorce can be confusing. As family lawyers, we are faced with many questions on the matter every single day. Honestly, we see asking questions as the best first step anyone can take because an understanding of the process and your rights is key to minimising hassles and time-wasting. Here are the answers to the 10 most frequently asked questions about divorce.

How do I apply for a divorce?

Your divorce application can be submitted either as a sole application; by yourself or together with your partner; a joint application. When you file your application you need to pay a filing fee of $900 (although you may be eligible for a reduced fee). You can submit your application online to the Commonwealth Courts Portal, in person or by post.

Can I get divorced without going to court?

It is possible to get divorced without going to court. This would normally be in circumstances where the divorce is uncontested and both parties are agreeable in regards to the marital settlements and all paperwork is accurate and filed accordingly. However, this is not an option if there are any children of the marriage under 18 years of age.   

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

Firstly, you cannot apply for a divorce until you have been separated for at least 12 months. You can however, still apply for a property settlement while separated, and start any necessary divorce preparations or conversations with your spouse or lawyer and potentially save time.

After filing for divorce, the process will last at least a few months. If granted at your hearing, your Divorce Order will be issued by the Court one month and one day after the hearing date.

Am I eligible to apply for a divorce in Australia?

Your are eligible to apply for a divorce if the following apply to you.

  • You are an Australian citizen or have been lawfully living in Australia for 12 months or more and intend to keep living in Australia.
  • Your marriage has broken down without any likelihood of getting back together.
  • You have been separated from your partner for at least 12 months and 1 day.

How long do you need to be separated before you can apply for a divorce?

The separation period before filing for divorce is at least 12 months and one day.

Are assets divided 50/50 in divorce?

No, the ‘50/50 rule’ is a common myth, there are no laws or standards enforcing this. Dividing property in a divorce depends on numerous factors regarding the parties involved and although an equal balance might be ideal in some cases, it is not always the most appropriate solution.

How much will a divorce cost?

There are numerous costs associated with divorce so this answer will vary depending on your circumstances. In all cases, the compulsory filing fee for a divorce application is $900, or if you are eligible for a reduced fee – $300 (as of July 2018). You may need to pay additional filing or court fees, they are listed online. Then, there are the legal costs which will depend on the complexity of your case, the types of legal services and your lawyer’s rates.

Can you be separated and live in the same house?

Yes, some couples will continue to live in the same house for a period of time after separating, usually for financial or practical reasons. If you lived in the same house during some, or, all of the required 12 month separation period before applying for divorce, you will need to provide some extra information to the court to support your application.  Your lawyer will be able to assist you with this to ensure the Court will grant your divorce.

Can a party refuse a divorce?

Yes, in some cases, one party might oppose or refuse to sign divorce papers. This does not however, affect the right of the other party to seek a divorce or prevent the divorce from happening. You can still file a sole application for divorce and if the grounds for the divorce are satisfied, the court will still grant it.

How does a divorce affect my will and superannuation?

In divorce, your superannuation is considered as property so, like any other property or financial assets, you can arrange its division through an agreement like a consent order or binding financial agreement. How a will is affected by divorce varies in each state and territory. In general, your will takes effect as if your former spouse has died before you. Seeking legal help, reviewing your will and its validity is generally advised after divorce.  

This is only general information, for any other enquiries or more detailed assistance with your separation, divorce process, or your will, contact the family lawyers at Pentana Stanton today.