What is a divorce? How does it differ from separation?

People often use the word “divorce” to describe the general breakdown of a relationship. In Australia, however, a divorce actually refers to a specific Court order (called a Divorce Order) which legally ends a marriage. A Divorce Order is obtained by making an application, either jointly or individually, to the Court. These applications are subject to various rules and requirements and must be lodged in a particular way.

Separation, on the other hand, is not limited to legally married parties. A separation occurs when one party to a relationship, whether married or de facto, informs the other party that their relationship is over and that there is no reasonable chance of reconciliation. The date on which this communication occurs is called the date of separation. Separation can be mutual or initiated by just one person. It can also take place while the parties are still living together, a situation which is referred to as “separation under one roof”.

Following separation, the parties will need to divide all assets and liabilities, including superannuation entitlements, between them.This process is called property settlement [hyperlink to property settlement page]. If there are minor children of the relationship, the parties will also need to agree on arrangements for care of the children [hyperlink to parenting page]. A Divorce Order by itself does not finalise these issues.

‍Am I eligible to be divorced in Australia?

Parties who want to apply for a Divorce Order in Australia,whether married here or overseas, must meet each of the following criteria:

1. At least one party must be an Australian citizen or must have lived legally in Australia for the past 12 months and intend to continue living in Australia. This is evidenced by an Australian citizenship certificate, Australian passport, Visa Entitlement Verification Online status check or copies of bank statements.
2. The parties must have been separated for at least 12 months and 1 day before making the application.
3. The parties must be able to provide the Court with a copy of their marriage certificate, together with a certified translation if the marriage certificate is not in English.

How do I apply for a divorce in Australia?

To obtain a Divorce Order in Australia, one or both parties must file an Application for Divorce. If only one party (called the“applicant”) is applying for divorce, they will need to ensure the other party(called the “respondent”) is served correctly with the proper documents.Parties applying jointly do not have to worry about service requirements, as they are making the application together.

Once the application and supporting documentation have been filed and the Court’s filing fee has been paid, the application will be scheduled for a Hearing, which is ordinarily conducted remotely via telephone.Neither party is required to attend the Hearing unless:

1. The applicant indicated in their application that they wished to attend the Hearing;
2. There are children under 18 and the respondent has requested to attend the Hearing on that basis;
3. The respondent opposes the application by filinga “Response to Divorce”; or
4. The applicant was unable to find and serve the respondent, in which case an order for substituted service is required.

In most cases, a divorce will be granted immediately following the Hearing.

One month and one day after the divorce is granted, the divorce becomes final and the parties can obtain a Divorce Order as proof that their marriage has legally ended.

 How can Duffy & Simon help with my divorce?

Whether you are applying by yourself or jointly with your former partner, our experienced family law team can manage the process from beginning to end. This includes:

1. Advising which application and supporting documents are required given your circumstances;
2. Preparing and filing all paperwork on your behalf;
3. Undertaking all necessary service requirements;
4. If need be, attending the Hearing on your behalf; and
5. Obtaining your Divorce Order a month after the divorce is granted.

With our years of expertise and careful attention to detail, we are well placed to help you navigate this process as quickly and cost effectively as possible. By avoiding frustrating procedural issues and unnecessary delays, we can help you focus on one of the most important matter following a separation: moving forward with your family.

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