While some factors may impact how long it takes to finalise a divorce, you can usually expect the process to take four months in Australia, from the date of divorce application to obtaining the divorce order.
Initiating a divorce can be an incredibly stressful time. Parting ways with your spouse is a difficult decision to have to make, made worse by having to navigate the complicated legal process. As experienced family lawyers, we understand that you’ll likely want to get the divorce process over and done with as speedily as possible — while also receiving a fair outcome.
Before we can help you begin the divorce process, there are some requirements you’ll need to meet.
What Are the Specific Requirements to File for Divorce?
The Family Court of Australia has a list of requirements that must be met before they’ll consider your divorce application. Divorce is an expensive process for both the courts and the applicants. This checklist helps the courts determine that you are ready to permanently end your marriage, eliminating the chance that a couple has filed prematurely.
These requirements are:
- Your marriage must have broken down irretrievably
- You must have been separated from your spouse for a minimum of 12 months
- (If you have children under 18) You must have made arrangements for the welfare of your shared children
How to Prove the Marriage Has Broken Down Irretrivably?
To anyone outside of the family law system, it may seem difficult to prove that a marriage has broken down irretrievably. Thankfully, the definition is quite simple:
You and your spouse must have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life.
This requirement acknowledges that it takes time to know for certain that a marriage cannot continue. With this in mind, a counselling certificate is required if the duration of the marriage is less than 2 years.
The court wants to know that you haven’t rushed into the divorce process and that there’s no chance that you’ll later wish to reconcile.
What if I Still Live with My Spouse?
In some circumstances, you may still be living with your spouse for an extended period, despite functionally no longer being together. This may be for childcare purposes, financial reasons, or failure to agree on how to divide assets. You can still apply for a divorce in this situation. This is known as Separation Under One Roof.
If you and your spouse lived together for any time during the mandatory 12-month separation period, you will need to provide more information to the courts. It’s helpful to have a family lawyer assist with this process, as the information must be compiled properly before filing for divorce.
In an affidavit, you will need to show the following:
- Changes in sleeping arrangements
- A reduction in shared activities or family outings
- A decline in performing household duties for each other
- A division of finances
- Any other matters that show the marriage has broken down (e.g. have you notified family and friends of your separation)
- Explain why you continued to live in the same home following separation
- Explain what intention, if any, you have of changing the situation
The Divorce Process
Applying
Once you’ve ticked off all the eligibility requirements, you’ll be able to submit a divorce application. You can apply together (represented by the same lawyer), or separately. Divorce applications that are filed jointly tend to be processed more quickly than ones filed separately. Once the court has reviewed your application, they’ll schedule a hearing date.
Waiting Period
Next, there is a mandatory one-month waiting period after applying for divorce. Think of this as a cooling-off period, allowing for the emotionally charged experience of filing. During this time, you can choose to reconcile or begin working on custody agreements, property settlement and financial agreements.
Hearing & Finalising
At your divorce hearing, the courts will verify that all legal requirements have been met and check that the details of the filing are correct. If you’ve applied jointly, you likely won’t need to participate in the hearing. If the court is satisfied, a divorce order will then be granted. Your divorce is finalised one month and one day after the court issued the divorce order.
Why Could a Divorce Take Longer than Four Months?
While a divorce usually takes four months to finalise, some factors may increase the duration of the process. If your case is particularly complicated, whether that be due to financial or custody reasons, the divorce may take longer to finalise. Lack of cooperation from the other party will also always extend the process and may result in the courts stepping in to arbitrate. An increased caseload in the system may also cause delays. Having legal representation will give you a better chance of a speedy divorce process.
What About Custody Arrangements?
Unless it is not safe for you to make your own agreement, usually, a court will not need to make decisions regarding custody. It’s expected that you’ll make a genuine attempt to make your own agreement, whether on your own or with the help of family lawyers. The Family Court usually requires a custody agreement to have been made before they can issue a divorce order. Going to the courts to decide custody is expensive, and you may not get the resolution you want. Opt instead to make court a last resort, and engage a family lawyer to help you mediate if there’s a dispute.
What About Property Settlement?
The divorce process is only a formal recognition that a marriage has ended and does not determine property settlement. If you have combined assets, you’ll need to make an agreement with your spouse and file it with the court as a Consent Order. Our team of divorce lawyers in Pakenham are experienced in dividing property and can help you negotiate the most favourable and fair outcome. You can seek orders from court if you’re unable to reach an agreement.
Contact Duffy & Simon for a Consultation
With over 130 years of experience helping our clients achieve favourable legal outcomes, Duffy & Simon are the family lawyers you want on your team during divorce proceedings.
With an exceptional understanding of the family court system, we’ll help to smooth the road ahead, allowing you to move on peacefully to a better future. Our family lawyers will ensure you’ve met all legal requirements and help you negotiate custody arrangements, property settlement, and financial matters, for a swift resolution.
For peace of mind and guidance you can trust, call Duffy & Simon today.