In most cases, applying for a divorce in Australia is a fairly straightforward process.
Read this blog post to find out the answers to the following frequently asked questions about applying for a divorce:
1. When can I apply for a divorce?
2. What happens if my spouse and I do not agree the date we separated on?
3. Can we still divide our assets before we get a divorce?
4. What happens if we were married for less than 2 years?
5. What is the cost to apply for a divorce?
When can I can apply for a divorce?
Before you can apply for a divorce you and your spouse must have been separated for at least 12 months. The date of separation is the date you regarded the marriage as over and communicated this to your spouse.
It is possible to be separated but continue living in the same house. If you and your spouse have been separated for at least 12 months but during all or part of this time you continued living in the same house, then you will need to file affidavit evidence demonstrating how you and your spouse were living in the same house but living separate lives. You will need to file an affidavit from you, your spouse (if filing a joint application for divorce), and an independent person, such as a family member or friend.
What happens if my spouse and I do not agree the date we separated on?
If you and your spouse do not agree the date that you separated on, you can still apply for a divorce but make sure that you accurately record what you each say is the date of separation in the Application for Divorce. There is space provided for this in the form.
If your spouse considers that it has been less than 12 months since you separated, this can prolong or stop the divorce from going through. There may need to be a Family Court trial to determine the date of separation. If the Family Court determines that, at the time the divorce application was filed it had been less than 12 months since you and your spouse separated, then the Court will dismiss your application for divorce. Rather than proceeding to a trial, you may decide to discontinue your application for divorce, or seek an order to dismiss your application. You can then re-apply for a divorce once it has been 12 months since you and your spouse separated.
It is a good idea to confirm the date of separation in writing, preferably by email or text message to your spouse, on the date of separation or as soon as possible after, to avoid any dispute.
Can we still divide our assets before we get a divorce?
You do not need to wait 12 months after separation, or wait until you have obtained a divorce order, to effect your property settlement. You and your spouse can divide your assets, liabilities and superannuation (i.e. effect your property settlement) at any stage after separation.
What happens if we were married for less than 2 years?
If you and your spouse have been married for less than 2 years at the time you apply for a divorce, then you may be required to attend marriage counselling before the divorce order will be granted, unless you obtain permission from the Family Court to apply for a divorce. The 2 year time period includes the time where you were separated.
What is the cost to apply for a divorce?
The fee to file an Application for Divorce in the Family Court is currently $940 (as at March 2022). However, if you have a concession card then you can apply to pay the reduced application fee, that is currently $310 (as at March 2022). You will need to file an application for reduced fees form and show or provide a copy of your concession card to the Family Court. If you are applying for a joint application for divorce then both you and your spouse will need to have a concession card to obtain a reduction of the filing fees.
For further information about obtaining a divorce, and our costs, please contact Applecross Family Lawyers on (08) 9364 9915 or 0474 458 340.