Navigating the complexities of separation and divorce can be challenging, but Shan Lawyers is here to help you navigate each step of the legal process. We offer you comprehensive services tailored to your unique needs, including an initial 20-minute free legal advice.

When it comes to separation and divorce, you will need to know when you are eligible to file for divorce, how to enter into parenting arrangements, and what your entitlements are in terms of property division.

We support you in finding resolutions through negotiation and mediation and can represent you in the Federal Circuit and Family Court of Australia if needed. Our experienced lawyer specialises in achieving fair settlements, prioritising children’s best interests, and providing legal support during this difficult time.

Clients choose our small law firm because we listen to what they say, understand their needs, and provide strategic and personalised advice. Let us help you transition to the next chapter of your life with confidence and peace of mind.

We are here to support you every step of the way!

Divorce & Separation Law Australia: What You Need to Know!

We have put together a comprehensive list of frequently asked questions (FAQs) from our experience for your guidance.

1. What are the residency requirements for obtaining a divorce in Australia?

In Australia, to apply for a divorce, you or your spouse must meet one of the following residential requirements:

a. Be an Australian citizen: This includes those who were born in Australia, have obtained Australian citizenship through descent, or have been granted Australian citizenship; or                                                

b. Be domiciled in Australia: This means that Australia is your permanent home; or

c. Ordinarily live in Australia: You must have lived in Australia for at least 12 months immediately before filing for divorce.

Note –You must also prove that the marriage has irretrievably broken down, evidenced by a separation of at least 12 months.

2. How long do I need to wait to apply for divorce after my separation?

In order to be eligible to file for divorce, you must be separated for a 12-month continuous period. Your relationship must be irretrievably broken down (meaning not possible to repair or is impossible to return to a previously existing situation or condition). For example, if you separated on 4 March 2024, you have to wait for 12 months, and you can then sign your divorce application on 5 March 2025 and file on the same day.

3. Do I need my spouse’s consent to apply for a divorce, or can I apply for a sole divorce application?

You can apply for a sole divorce application. You do not need consent from your spouse to apply for a divorce. However, if your spouse consents to apply for a divorce together you can apply for a joint application, which is much easier.

If a joint application (you and your spouse apply for a divorce together) for divorce is made, the process becomes much easier as there’s need to have the application personally served upon your spouse.

If you apply for a divorce on your own, you cannot personally serve the application to your spouse. In this case, a third party (eg: a professional process server is a person who delivers legal documents to individuals involved in a court case or a friend) must be engaged to serve the divorce application, and you will need to provide proof of service.

4. How to apply for divorce?

Applications for divorce should be submitted online through the Commonwealth Courts Portal. You will need to answer a series of questions and upload a copy of your Marriage Certificate. If you were not born in Australia and have become an Australian citizen by certificate or permanent residency, you will need to prove your residency by uploading your Australian Citizenship Certificate or your current valid visa. If you find the process daunting, we can assist you with preparing your divorce application. Contact Shan Lawyers.

5. Can I get a divorce with a marriage of less than 2 years?

If your marriage was less than 2 years in duration, you and your spouse must attend marriage counselling before filing for a divorce. In limited circumstances, the court may grant you permission to file your divorce application without attending counselling. If you wish to discuss this further, please contact our office.

6. Do I need to prove my separation?

If you and your spouse are separated but still living in the same residence (“under the same roof”), then YES, you need to prove that genuine separation has occurred between you and your spouse. This may become complex, and you may require legal advice on how to prove it in court. Speak to our legal team today.

7. My marriage certificate is in a foreign language. What should I do?

If your marriage certificate is in a foreign language, you need to have it translated by a translator who is accredited by the National Accreditation Authority for Translators and Interpreters (NAATI). Attach both the foreign language and English versions of the marriage certificate with your divorce application.

8. Do I need to be married in Australia to obtain a divorce in Australia?

In Australia, it is not necessary for you to be married in the country for your marriage to be considered legal. If you are legally married outside of Australia and it is registered in that jurisdiction, then it is recognised as a legal marriage in Australia. You just need to attach a copy of the overseas marriage certificate to your divorce application if it is in English.

If your marriage certificate is in a foreign language, you will need to have it translated. However, in certain situations, the court may recognise a marriage even if it occurred without a marriage certificate. Speak to our legal team to find out more.

9. Do I need to attend the court hearing to get a divorce?

If you are applying for a divorce with a joint application, you will not have to attend a court hearing. However, you will need to go to court if:

1. You have made a sole application and there is a child from the marriage under 18 years old at the time of filing your divorce application.
2. Your spouse files a response opposing your application.
3. In certain other limited circumstances, for example, if you need to prove that you and your spouse separated under the same roof for 12 months.

10. How much does it cost to get divorced, and who pays for it?

When you initiate the divorce process without a lawyer’s assistance, the main cost you will need to consider is the court filing fee for a divorce application. The divorce court filing fee is $1100 from 1 July 2024. However, in certain situations, you may be eligible for a reduced fee of $365, if you can demonstrate that you are facing financial hardship or if you hold a certain Government concession card, you may also be eligible for a reduced fee.

If you file for divorce on your own (without your spouse), you may also have to cover the expense of hiring a process server (a third party to serve the divorce application on your spouse) to deliver the necessary divorce documents to your spouse, and this typically ranges from $300 to $600.

If you need a lawyer’s help to prepare your divorce application and for their attendance, please contact Shan Lawyers for an estimated quote.

11. How long does it take to get a divorce?

A straightforward (non-complex) divorce process usually takes 3 to 4 months from the time the divorce application is filed. This time frame will allow you to serve the divorce application on your spouse and prove it to the court.

If you are filing a sole application and your spouse (the other party/respondent) is located in Australia, the documents must be served at least 28 days before the court hearing.

If you are filing a sole application and your spouse (the other party/respondent) is overseas, the documents must be served at least 42 days before the court hearing. Sometimes, these time frames can be shortened, but you need a valid reason.

A divorce order becomes effective one month and one day after it is issued, although the court has the authority to shorten this period. For example, if the court issued your divorce on 27 May 2024,  it then  becomes effective on 28 June 2024.

12. If I apply for divorce will that cover other matters such as parenting matters, spousal maintenance, property division?

No. The divorce process is separate from family law parenting, property settlement, and spousal maintenance. These are entirely separate matters in their own right!

13. How does the intertwining of financial interests in divorce affect the process of your property division?

If you have joint ownership of assets, you should not file for divorce immediately once you become eligible to apply for a divorce. This is because once your divorce order becomes effective, you will have only 12 months from the date of the divorce order to finalise your property settlement and spousal maintenance. You need to seek leave from the Court if you want to claim your property settlement and spousal maintenance after 12 months. For parenting matters, there is no time limit.

In some cases, getting a divorce can be a strategic move to prompt your spouse to settle property matters without prolonged delay.

Facing divorce and separation? Seek the right legal advice. Contact Shan Lawyers and we will make it as easy as possible for you with our expert guidance and support.