How much will a Divorce cost?
The fees will vary depending upon your circumstances. However, they will start from $825 plus the filing fee for the Application. Please contact us to obtain a personal quote.
How long will it take to get divorced?
It will take at least 4 months to obtain a final Divorce Order. You shouldn’t plan to remarry until your divorce is confirmed.
How long must I be separated for before I can apply for a divorce?
In Australia, you must have been separated for a period of at least twelve months before applying for a divorce. If you have been separated, but reconciled for 3 months or more, then the 12 months period starts after the reconciliation.
On what grounds can I file an application for divorce?
To file an Application for Divroce you must:
- prove that the marriage is irretrievably broken, that is, that you have been separated for a period of no less than 12 months
- have lived separately for this 12-month period
- have been married for more than 2 years or attended the required counselling with the Family Court
What if I have been married for less than 2 years?
If you have been married less than 2 years and want to apply for a divorce you must:
- attend mediation with a court approved family and child mediator to discuss the possibility of reconciliation, prior to lodging your Application, and then file a certificate completed by the counsellor with your Application. You must attend this mediation session with your spouse or file an Affidavit setting out the reasons why counselling cannot take place.
- you may file an application seeking the Court’s permission to proceed within 2 years of the marriage. There are special circumstances in which this may be done.
Do I need to be present in Australia to apply for a divorce?
To be able to apply for a Divorce, at the date of filing at least one spouse must be:
- an Australian citizen;
- domiciled in Australia; or
- resident in Australia for at least 12 months.
Can my spouse refuse a divorce?
There are very few grounds to prevent a divorce being granted. If there is a jurisdictional argument as to which country should hear the divorce proceedings, or, if the date of separation is disputed then these issues will need to be determined by the Court prior to the divorce proceedings.
What happens if my spouse wants to oppose the divorce?
Your spouse must file a Response to your application and then serve the Response on you, or on your lawyer, before the hearing date. If a Response is filed by your spouse, your spouse must attend Court or have legal representation at the hearing. If a Response is filed, the Court might not grant the divorce application at the first hearing.
What happens if I cannot locate my spouse?
If you do not know the whereabouts of your spouse, you can apply to the Court for the divorce to go ahead. However, you must show the Court that you have tried to contact your spouse. If this is necessary, it will take longer to get the divorce and will cost a little more.
What happens if my spouse and I still live together?
It is possible to prove separation even if you still live in the same house. The action of separating must involve an open and complete break from the marital relationship, evidence of which must be presented to the Court, and may include:
- the cessation of sexual activity;
- living in separate rooms;
- maintaining separate bank accounts;
- not sharing meals;
- not providing household services;
- not sharing mutual entertainment inside or outside the home;
- not representing to relatives, neighbours or friends the marriage is continuing.
What if we were married overseas?
You can apply for divorce if you were married overseas as long as either you or your former partner:
- are Australian citizens or residents; or
- regard Australia as your permanent home; and
- you have a copy of your marriage certificate. If your marriage certificate is not in English there are additional requirements.
Can I remarry straight away?
It is illegal to remarry before the divorce becomes final. To do so is an offence (bigamy) and the second marriage is not legal. Your Divorce will not become final until the expiration of one month after the divorce was granted.
What happens if there are children of the marriage?
Where there are children of the relationship under the age of 18 the Court might not grant a divorce unless proper arrangements have been made for their care and welfare and those arrangements have been explained to the Court.
What about arrangements for children, spousal maintenance, or property?
The granting of a divorce does not determine issues of children, spousal maintenance or property. These are separate issues which we may assist you with prior, during or after your divorce is granted.
Be aware time limits do apply to make an application to the Court for spousal maintenance or for property division. becoming final.
Are there time limits to make an application to the Court for spousal maintenance of property division?
Time limits do apply should you wish to apply to the Court for either spousal maintenance or property division.
For a couple who was married you have 12 months from the date of divorce to lodge your application. For a de-facto couple, including those in a same-sex relationship, you have 24 months from the date of separation to lodge an application to the Court for either spousal maintenance or property disputes.
Are children of a prior relationship considered children of the marriage?
All children that were treated as a family member immediately prior to separation are included as children of the marriage. This includes step children and foster children. The arrangements for all children have to be disclosed.
Can I revert back to my maiden name after the divorce?
You can use your maiden name even before your divorce if you want.
Can I change my children’s’ surnames?
Changing your children’s names is more complex and it’s best you speak with us directly about your situation.
Does a divorce affect my Will or Superannuation?
Almost certainly it does, as any gift in a Will to a spouse becomes invalid on divorce. You should seek our advice about a new Will and nomination of a beneficiary for your superannuation and life insurance.
Will we have to go to Court to get a divorce?
If there are no children of the marriage under the age of 18, then neither party needs to attend the divorce hearing.
If there are children under 18 but you and your spouse have made a joint application for divorce, then neither of you needs to attend the hearing.
However, if only one party made the divorce application, and there are children of the marriage under 18, then the applicant is required to attend the hearing (the other spouse is not required to attend but they can if they wish.) In the event that the other spouse has filed a “Response to Divorce” application and is opposing the divorce, then they will need to attend the hearing. You can apply to the court to appear by telephone if it is inconvenient or expensive for you to travel to the court.
How does the law define my same-sex relationship?
If you and your partner live together as a couple on a domestic basis but are not legally married or related by family, then you are in a de-facto relationship, irrespective of the gender of either party.
What specific factors will the courts consider when determining whether my same-sex relationship is a “de-facto” relationship?
- The duration of the relationship;
- Living arrangements
- Whether the relationship is exclusive;
- The financial dependence, or otherwise, of the relationship;
- The ownership and use of any property of the relationship;
- Whether the relationship is registered in a state or territory; and
- Whether there are any children of the relationship;
What is Domestic Violence?
Domestic violence generally involves controlling behaviour, such as verbal abuse, threats, physical harm, sexual harassment or intimidation. There are legal steps, such as taking out an Apprehended Violence Order (AVO), you can take to protect yourself and your children from domestic violence.
Does the abuse need to be physical for me to make a domestic violence report?
No. Violence can include emotional abuse, psychological abuse and physical abuse.Emotional and psychological abuse can constitute:
- Threatening a person
- Following a person in public or to their place of work
- Preventing a person from seeing or contacting loved ones
- Derogatory taunts and words
- Monitoring or tracking a person’s movements using digital video, photography, emails or social networking sites
- Reading a person’s private emails or text messages
What is a de facto relationship?
Two people are in a de facto relationship if they live together as a couple on a domestic basis but are not legally married or related by family. This includes opposite-sex and same-sex couples. The Court will consider the following specific factors when determining whether a relationship is “de facto”:
- The duration of the relationship
- The existence of an exclusive relationship
- The parties living arrangements
- The level of financial dependence, or otherwise, between the two parties
- The ownership, use and acquisition of property
- The degree of commitment to a shared life
- Whether the relationship was registered in a state or territory
- The care and support of any children of the relationship
- The reputation of the relationship
What are Consent Orders?
Where you have reached agreement with your former partner on property, financial and children’s matters you can seek to formalise those agreements by applying to the Court for Consent Orders.
Consent Orders are binding and legally enforceable
Do I need a lawyer to make Consent Orders?
No. You can file an application for consent orders at a family law registry, or electronically on the Commonwealth Courts portal. Currently the fee is $160.
The court will not automatically make the consent orders you have agreed upon. Seeking legal advice can help you to ensure that you have given due consideration to all of the relevant issues, and that nothing has been missed. A lawyer can help you make an agreement that is fair and just, and advise you about the Court’s likely response, particularly regarding the best interests of children.
Are there time limits on making Consent Orders?
An application for consent orders in relation to a property or financial settlement must be filed within 12 months of a divorce, or within two years of a de-facto relationship breaking down.
What if the court does not agree to the Consent Orders?
If there are any concerns about your application, then the Registrar will issue a notice asking you to address the concerns within a specified time frame. Failing to respond to the notice will mean that your application is dismissed.
What is the difference between Consent Orders and parenting plans?
A parenting plan is an informal agreement between two parties about matters affecting children of the relationship, such as where they live and the responsibilities of each parent. Unlike Consent Orders, parenting plans are not binding or legally enforceable. Obtaining Consent Orders formalises the agreement and makes it legally enforceable.
What is FDR? (Family Dispute Resolution)
This is the legal term for services (such as mediation) that help couples affected by separation and divorce to sort out family disputes. FDR can help you to agree on a range of issues relating to property, money, and most importantly – your children. The family dispute resolution process involves:
- Identifying the issues to be resolved
- Sharing relevant information
- exploring ideas and options
- listening to you former partners point of view
- your former partner listening to your point of view
- putting agreements in writing
Do I have to attend family dispute resolution before I go to court about my children?
You can only apply to a family law court for a parenting order when you have a certificate from an accredited FDR practitioner which states that you have made a genuine effort to resolve your dispute through FDR. The requirement to participate in FDR applies to new applications, and applications seeking changes to an existing parenting order.
What happens to any agreement reached at FDR
If you reach agreement on arrangements for your children, this can be recorded as a parenting plan. A parenting plan must be in writing, dated and signed by both parents. Your agreement or parenting plan can include mechanisms to change arrangements and resolve disagreements. Parenting plans can be renegotiated over time, if necessary.
What is a Parenting Plan?
A parenting plan is an informal agreement made between you and your former partner that establishes parenting arrangements for children. It is not legally enforceable. However, you can apply to make it binding by applying to the court for Consent Orders. Consent Orders are an agreement between you and the other party which is approved by the Court and then made into a Court order.
By doing so, you are adding protection in case of circumstances changing or future disputes. You do not need to consult with a lawyer to make or to change a parenting plan, however legal advice can be sought to ensure all important considerations in the plan have been incorporated, and that the children’s best interests are prioritised.
What’s in a Parenting Plan?
Parenting plans can incorporate any details that you and your former partner wish to include. Ultimately, parenting plans should ensure that children have access to both parents in a substantial and significant way. Some examples of details that can be included are:
- Who the child lives with
- Who the child spends time with and how they communicate with the other parent
- What happens on important family events such as Christmas Day, Easter, school holidays, birthdays, Father’s Day and Mother’s Day
- Access to extended family and other significant people in the child’s life
- Division of parental responsibility and decision-making
- Financial arrangements
- Process for dispute resolution about the child custody arrangement
Which court decides parenting matters?
Family law matters in NSW are dealt with in the Family Courts and the Local Court. In many cases you may file your matter at the Local Court and it will be transferred to the Family Courts. More complex matters are likely to be decided in the Family Courts. Family Courts have procedures that aim to be more responsive to the needs of children.
What is the difference between a parenting plan and parenting orders?
Parenting plans are informal plans made by you and your former partner. While they are not legally binding, they will usually be taken into consideration by the court if it has been signed by both parties and was formed without threat or intimidation.
If parents cannot agree on arrangements for the children’s care, and family dispute resolution has failed or is deemed not appropriate, then you can apply for a parenting order from a family law court. Parenting Orders are made by the Court and are therefore binding and legally enforceable. This means you have legal recourse should your former partner not abide by the agreement that was made.
What is an Independent Children’s Lawyer?
Sometimes the Court may request that an Independent Children’s Lawyer be appointed to form an independent view of the evidence and act in the best interests of the child. This lawyer may interview the child without the parents being present, contact schools and health professionals of the child or parents and make sure certain documents and reports are provided to the Court. They may ask for a court expert to be appointed if they believe it is necessary to assist the Court reach a decision about with whom the children should live and spend time with.
What is a Child Support Agreement?
A Child Support Agreement is a formal agreement that is made between the parents in regard to child support payments. It generally involves the payment of money, but can also include other items, such as school fees, healthcare and insurance. There are two types of child support agreements, and it is up to you to decide the best one for your situation:
Limited child support agreements: In these arrangements, signed by both parents, the parents determine their own child support payments and how they are made. You are able to register this agreement with the Child Support Agency however it should be noted that they will not accept it if the child support payments are less than the amount determined under a child support assessment. Limited child support agreements do not require legal advice however you can seek assistance if you would like help with it.
Binding child support agreements: These arrangements allow parents to make binding agreements about child support payments, regardless of whether a child support assessment has been made. It can be made for any amount that both parents have agreed to. It should be noted that you must obtain independent legal advice before entering into, or ending a binding agreement. A binding agreement will only be ended by a new binding agreement or by a court.
I have a child support assessment. My child turns 18 this year and is still at school. Can I do anything?
If a child turns 18 during their last year of secondary school, the carer parent can ask the Child Support Agency to continue the child support assessment until the child completes the school year. This application must be made before the child turns 18, and only applies if the child is already in the last year of school. Therefore, if your child is turning 18 and is still in their second last year at school, either a private agreement must be reached or the carer/parent or young person can make an application to the Court for an order under the Family Law Act.
What is the time limit to apply for Spousal Maintenance?
You must make an application within 12 months of a divorce being finalised, or within two years of the breakdown of a de facto relationship.
Am I eligible to file for Spousal Maintenance?
You can file for spousal maintenance as long as you and your former partner separated after 1st March 2009.
What happens if I begin a new relationship?
If you remarry, you are generally not entitled to receive spousal maintenance.
If you enter into a new de-facto relationship, the Court will consider whether your ability to support yourself adequately has changed.
What is mediation?
Mediation is a form of dispute resolution that allows you to discuss openly what you want to achieve, including property settlement, arrangements for your children and child support. It is a flexible settlement tool and can be either formal or informal, where a mediator helps you to identify and resolve points in dispute. It can help you to understand your former partner’s goals in the property settlement, and get things “on the table”. If you can agree, then this will be formally documented through written consent orders.
What are “pre-action” procedures?
Before you can file for spousal maintenance orders, you and your former partner will be required to participate in dispute resolution, such as mediation, with the aim of coming to an agreement without the need to involve the court. If you come to an agreement, you can file for consent orders to make the agreement legally binding.
If you are unable to reach an agreement, you can then apply to the court for spousal maintenance orders.