As divorce lawyers based in Brisbane, we can assist you with all divorce related matters. Below you can find some useful information. If you need professional advice about your individual circumstances, please call us: (07)34659332 or request a call back using online enquiry form provided here.
How long do you have to be separated before divorce in Australia?
You must be separated for at least 12 months before you can apply for a divorce.
If you still live under the same roof you can still obtain a divorce provided you swear to the separation in your divorce application and the other party/a third party swears to the separation also.
What if one spouse doesn’t want a divorce? Can a spouse stop a divorce?
No, a spouse cannot stop a divorce. In Australia, there is no need for you to provide any reasons for your divorce other than that your relationship has broken down irretrievably, as evidenced by separation of the parties for 12 months.
There are 4 things that the court must be satisfied of before granting your divorce:
- The Marriage has broken down irretrievably (separation for 12 months is necessary);
- One of the parties is either an Australian citizen, resident or lived in Australia for 12 months;
- There have been adequate arrangements put in place for the care of the children (if any) – this does not mean you need a parenting plan or court order in place. The Court simply needs to be satisfied someone is taking care of the children. This information should be included in your application for divorce;
- If the Application is a sole application, you must serve your former spouse at least twenty-eight (28) days prior to the Hearing (if the ex spouse lives in Australia) or at least sixty (60) days prior to the Hearing (if the ex-spouse lives overseas)
Do both parties have to sign divorce papers in Australia?
No. You can make a joint application for a divorce, whereby both you and your former spouse sign the application or you can make a sole application for divorce.
The only difference with a sole application is that you will need to have the application served personally on you former spouse via a process server, and this must be done at least twenty-eight (28) days prior to the Hearing.
How does a person get served divorce papers?
You can serve your ex spouse divorce papers by post or by hand. You cannot serve the application on your ex spouse yourself.
You must arrange for a person over 18 years of age to serve the documents on your ex spouse (the respondent). The person serving the documents can be a family member, friend or a professional process server.
The documents you will need to give to the server to serve on the Respondent are:
- sealed copy of the Application for Divorce
- sealed copy of the Affidavit of eFiling
- copy of the Marriage, families and separation brochure, and
- any other documents filed with the Federal Circuit Court relating to your Divorce Application
- Acknowledgment of Service (to be signed at Part C by your ex spouse.
What do I do once the documents have been served?
If the respondent signs the Acknowledgement of Service (Divorce) the server must complete the Affidavit of Service by hand and attach the original signed Acknowledgement of Service. The annexure note at the bottom of the Acknowledgement of Service should also be signed by the witness at the same time as witnessing the Affidavit of Service by hand.
If the server does not know the respondent, the applicant must complete the Affidavit Proving Signature and attach a photocopy of the Acknowledgement of Service.
If the respondent refuses to sign the Acknowledgement of service, the server should complete the Affidavit of Service by hand and tick the appropriate box at Part B of the document.
After the documents are signed, you will need to upload the forms to the Commonwealth Courts Portal (www.comcourts.gov.au).
What do I need to apply?
You will need your marriage certificate, identification, and proof of citizenship (if you were not born in Australia).
What about the children?
The court needs to be satisfied that your children are being taken care of before a divorce will be granted, but will not expect that you have a formal agreement in place in regard to the children’s living arrangements.
What about property & assets?
You do not need to have finalised your asset division (property settlement) to be able to apply for a divorce.
However, we advise you to make an effort to resolve your property settlement issues before applying for a divorce.
You may be able to reach agreement with your ex partner without having to go to court. This agreement should always be formalised by way of a consent order. If you would like to know more about the process of legally formalising a property settlement, check out our property settlement page.
Bear in mind that if you can’t reach agreement, a formal application for property orders must be lodged within 12 months of your divorce becoming final.
How are assets split in a divorce?
If the court has jurisdiction to make an order altering the property interests of the parties, it does so after considering the following 5 step process:
- Is it just and equitable to make an order given the parties’ circumstances?
- What is the nature and value of the property interests of the parties, including superannuation?
- What have been, and continue to be the financial, non-financial and homemaker contributions to the maintenance and upkeep of that property?
- What are the parties’ future needs, as defined by factors set out in section 75(2) of the Family Law Act?
- How can an order be made which is just and equitable.
Visit our Property Settlement page for more information on this topic.
How long does it take to get a divorce in Qld?
When you lodge your application the court will advise the date of the hearing, usually within 3 – 5 months. The hearing is not long and you may not need to attend. If you have children under 18 your attendance at court is required. The divorce order becomes final in one month and one day from the date of the hearing, provided it is granted. So on average, it takes 4 to 6 months for your divorce to become final, which will enable you to remarry.
Want to know more about Divorce and when you should obtain legal advice? Read our article Divorce – What you need to know to find out about the myths and facts of divorce.
Why does a divorce take so long?
There are many people who are applying for a divorce at the same time as you. With approximately 50% of all marriages ending in divorce, that is a long list of applications the court has to deal with!
What should you not do during a divorce?
Do not sell assets and do not purchase new assets before doing a formal property settlement agreement between you and your former partner regarding the division of your assets.
What is the average fee for a divorce?
The average divorce application costs between $1,500 and $2,000, plus the court filing fee. The costs that you will pay will depend on the circumstances of your case.
Note, this does not include the cost of a formal financial agreement (being either a binding financial agreement or consent order) which deals with the division of your assets.
Is there any advantage to filing for divorce first?
No. However, there is sometimes an advantage to file your application for divorce sooner, rather than later, depending on the circumstances of your case.
Is it better to get separated or divorced?
This will depend on the specific circumstances of your case. Contact one of our experienced family lawyers to discuss which option is right in your individual case.
Why would someone stall a divorce?
There is no good reason to stall a divorce. We suspect people that try to stall a divorce are doing so to hurt/harm you by elongating the process and causing you further financial and emotional stress.
Want information on a specific area of family law?
If you want more information on issues relating to parenting disputes, check out our Common Questions page as well as the following family law articles:
- Fact Sheet – Children – A guide for separated parents
- How to spend more time with your children
- What is substantial and significant time
- Parental Alienation in Family Court Disputes – Part 1
- Parental Alienation in Family Court Disputes – Part 2
- Top 10 things people do wrong in child custody matters
- What age can a child decide where they live?
- Admissibility of recordings in family law cases
- Am I a parent?
- I’m Not a parent. Can I apply for a parenting order?
- I want sole custody
- Can I go to court without doing mediation first?
- Can parenting orders be changed?
- Relocation of Children
- Prevention is better than cure – interim relocation cases?
- Unilateral relocation of children
- International travel with children after separation
- My ex is breaching a parenting order. What do I do?
- When is supervised time ordered?
- Is a child’s changed views enough to change a parenting order?
- Interim parenting orders – why can’t the judge make the orders I want?
- When can you change your child’s surname?
- What is substantial and significant time?
- Domestic violence order applications – boosting prospects of success
You may also like to check out our family law information videos for helpful tips, advice and information following separation on parenting related issues:
- Why can’t the judge make the orders I want at the first court date?
- What is the purpose of the Family Report?
- When can a child decide where they live?
- When can a parenting order be changed?
- Facebook and family court
- How to formalise a property settlement or parenting order
- Frequently asked questions – the initial consultation
- Client stories with Courtney
You may also find the following family court information pages and fact sheets helpful:
- If you agree on parenting arrangements;
- If you do not agree on parenting arrangements;
- Compulsory Family dispute resolution – court procedures & requirements;
- Marriages, Families & separation;
- Parenting orders – obligations, consequences and who can help;
- Complying with orders about children;
- How do I apply for parenting orders?
Property Settlement / Asset division issues
If you want more information on issues relating to property settlement disputes, check out our Common Questions page as well as the following family law articles:
- What to do and what not to do when you separate
- Why you should formalise your property settlement;
- Is Domestic violence relevant in a property settlement?
- 6 secrets revealed to protect your assets
- 10 tips to protect your assets
- 6 things you must know before hiring a family lawyer
- Your Duty of Disclosure
- Spousal Maintenance – supporting your ex partner after separation
- Initial contribution of assets in a long relationship
- What is the just and equitable requirement?
- Chancellor & Mccoy – no property order just & equitable after 27 year relationship
- Am I in a de facto relationship?
- Property acquired after separation – how is it treated?
- Future inheritances – when are they taken into account?
- Failure to disclose an asset can derail consent orders
- Consequences of Defaulting on property orders
- Varying property orders
- Who stays in the home after separation?
- Can the court order someone to leave the house – ouster orders
- Money lent from parents – gift or loan?
- The impact of centrelink fraud on a property settlement
- CGT rollover relief for transfers of property pursuant to family court orders
- Costs orders
- Divorce – what you need to know
- Going back to work after divorce
You may also like to check out our family law information videos for helpful tips, advice and information following separation in relation to property settlement related issues:
- What is my separation date?
- How do I leave a relationship with no financial means?
- How a court determines your property settlement entitlements
- Time limits on property settlements
- 6 things you must know before hiring a family lawyer
- What to do and what not to do when you separate
- How to formalise a property settlement or parenting agreement
You may also find the following family court information pages & fact sheets helpful: