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How to get a divorce in Australia?

Two separate wedding rings next to the word "divorce". The concept of divorce, parting, infidelity . Selective focus.

Research by the Australian Institute of Family Studies shows that people in their mid to late 20s are the most likely to divorce followed by couples in their late 40s.And those who get divorced have usually been married nine years or less.

Divorce is a straight-forward process, taking as little as three months provided that all the requirements are met according to Florence Cruz Montalvo, a solicitor of the family law early intervention unit and refugee service at Legal Aid New South Wales.

“Before you start, you need to think about: Am I a citizen or my husband and wife is citizen? If not, have I been in Australia for 12 months and intend to live here indefinitely? Have I been separated for more than 12 months and that could be physically or under the same roof? Do I have my marriage certificate in English? If you’ve been married for less than 2 years, you need to think about “have I gone through counselling? Do I have a counselling certificate or do I have a statement saying why it’s not appropriate to go through counselling? Do you have an address for your spouse?”

The Australian law requires that married couples need to be physically separated for at least twelve months for their divorce to be processed.

In Australia, a spouse does not need the other person’s consent to file for a divorce.

However, you do need to provide a copy of the filed divorce application to the other party.

“If you don’t know where the other person is you need to take reasonable steps to try to find them because you can always ask the court for permission to send it to them a different way so if you know that they’re still contacting their brother or sister or some other family member, if you’ve done everything possible and you still can’t get their address, you can always ask the court for permission to send the divorce application to them through that family member. If you only have an email address or you found them on Facebook, that’s the same thing.”

New settlers on permanent and certain temporary and refugee visas are eligible for the free translation service provided by the Department of Home Affairs.

Florence Cruz Montalvo recommends that newcomers have their legal documents, including marriage certificate translated into English within two years of their visa being granted in Australia to access the service.

Couples who’ve physically separated for more than twelve months can lodge their divorce application through the Federal Circuit Court.

“If you’re separated under the same roof, however, you do need to provide the court with a statement called an ‘affidavit’ just setting out when the date of separation was. Why you think that’s the date of separation? How your marriage was before the date of separation compared to how it was after so that it can really show the difference between the nature of the relationship.”

If you were married overseas, the Family Court can still grant you a divorce in Australia.

However, the divorce may affect those on a temporary visa.

In this case, Cruz Montalvo suggests that the applicant seek legal advice from an immigration lawyer as soon as possible to map out the options. 

“After you separate, if you’re receiving Centrelink, it’s really important to keep Centrelink informed of any changes in your circumstances. For child support purposes, if you have children, it’s really important to apply for a child support assessment after you get separated because if you’re receiving the family tax benefit, your payments can be reduced. If you’ve separated and you haven’t applied for a child support assessment.”

Married couples have twelve months to reach a property settlement from the day their divorce is finalised. 

“If there isn’t any property then you don’t necessarily have to go through settlement, but it’s people who own houses together or if the other spouse has a house in their sole name but you were living in that house and it was a family home. It doesn’t have to be under your name for you to go through a property settlement.”

The final settlement isn’t necessarily divided evenly between both parties as the court will look at the specific circumstances of each case. 

“Who contributed what financially? So, who worked? Who paid for what? What assets did they bring to the relationship? And they look at the non-financial contributions and the contributions to the family. So, cooking and cleaning and taking care of the children and taking care of the home and the husband and the wife and all of that. What are the finances of this relationship? What are the contributions? Should any adjustments be made because you have future needs because you’re taking care of the children or because of some disability or health condition? Is the proposed orders and split fair and just in all the circumstances?”

Recent figures from the Australian Institute of Family Studies reveal that nearly half of all divorces in Australia involve children under 18.

Most children in Australia are covered by the Child Support Scheme, which assesses how much child support should be paid from one parent to another.

Couples unable to reach an agreement can contact the Department of Social Services for help.

Victoria Legal Aid’s Acting Associate Director of Family Law Emma Smallwood explains. 

“Many parents actually come to their own agreement about how child support should be paid and how much should be paid but where parents don’t agree about child support or can’t agree about what child support should be paid after separation that’s where the Department of Human Services’ child support scheme can come into place and will assess how much child support should be paid from one parent to another for the benefit of children.”

The cost to file for a divorce with the Federal Circuit Court of Australia is $910.

However, individuals under special circumstances may be eligible for a reduced fee.

Emma Smallwood recommends keeping up-to-date with household finances to negotiate an agreement in the best interest of the children. 

It’s a good idea to make sure both parents or parties have all the household finance information so get copies of that for both parties so everyone knows what the situation is with the household finances and that can really help you negotiate an agreement about what’s going to happen with your property going forward which can be really important for caring for children.”

If you’re considering a divorce, visit the National Legal Aid website to find out how you can access free legal advice in your state or territory.

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