Divorce law and Legal services in NSW, Australia
Marriages are dissolved when they end in divorce. Divorce is the legal separation of two people from their marriage. Separating assets such as property or spousal maintenance is not part of the divorce process, nor does it affect child custody issues.
In Australia, nearly one-third of all marriages end in divorce. Going through a divorce is always difficult, but the divorce law and legal side shouldn’t be too complex. In Australia, divorce lawyers have helped countless families separate amicably so that they can move on to the next stage of their lives.
No-fault divorce law
Australia has no-fault divorce laws. If you want to qualify for a divorce, a marriage must have irretrievably ended, AND the spouses must have lived separately for 12 months before filing. If both parties can demonstrate that their marriage has broken down, they can remain separate for 12 months under the same roof.
Divorce is a relatively simple legal procedure. Though you might believe that you don’t need a divorce lawyer, you must meet several statutory requirements. In addition to ensuring your affidavits and certificates are on file with the proper Affidavit and witness, the divorce lawyers help you fill out the proper divorce forms.
Filing for Divorce under the Divorce Law
The Federal Magistrates Court in Sydney hears all divorce applications in Sydney, and a valid divorce application requires that the following conditions are met:
- A certified copy or original of your marriage certificate as proof of marriage.
- The separation lasted for 12 months.
- Serving the other party with a divorce petition must occur at least 28 days before the date of filing.
- This relationship provides for the care of any children that may result.
The Court will grant a divorce order if all the criteria are met, and it will come into effect one month after it is granted. A divorce certificate will then be issued.
Divorce Law: What Constitutes ‘Separation’?
Before filing for divorce, the couple must have been separated for 12 months. Traditionally, couples who have children together tend to stay in the same home. The current divorce laws allow a separated couple to “live apart” under one roof. You will need all the necessary evidence of separation to file for divorce with a divorce lawyer.
Relationship breakdowns require the resolution of many other factors besides filing for divorce. You can also seek legal assistance with the property settlement, division of assets, spousal maintenance, and child custody (contact and time with children) through divorce lawyers. If needed, these lawyers can also provide you with legal representation in the Family Court of Australia.
Divorce in New South Wales, Australia: A Step by Step Guide
It can be emotionally and physically draining to go through a divorce. The following step by step guide will help educate you on how to obtain a divorce in NSW, Australia, and take the guesswork out of the process.
Step 1: Verify your eligibility.
In NSW, you must meet specific requirements to be eligible for divorce. To obtain a divorce in NSW, you must show:
Currently, you have a legal marriage.
Relationship irretrievably broken
There has been a separation of more than 12 months between you and your partner. You are either an Australian permanent resident, citizen or have lived in Australia for 12 months. If you are a couple that is less than 2 years old, you will need counselling to ensure that reconciliation is unlikely.
Your responsibility is to provide documentation to the courts to prove these things. You must provide your marriage certificate or equivalent proof of marriage, as well as a scanned copy of your visa if you were not born in Australia as documentation.
Step 2: Choosing between a sole and a joint application
If you plan to begin the divorce process, you’ll need to decide if you want to file a sole or joint petition. As each method has different obligations, it is essential to understand the differences between a sole and joint application.
Sole Application
It will be your sole responsibility to sign the Affidavit for eFiling. The ex-spouse does not have to sign the Affidavit, and you must serve your ex with the divorce petition.
Joint Application
Both of you will fill out the application, and one will provide a copy to the other for signing.
Both of the parties compulsory sign the Affidavit for E-filing.
Step 3: Fill out a divorce application
You must complete an application form if you wish to get a divorce. The Family Courts Australia website will find divorce application forms in the divorce service kit. A solicitor or justice of the peace must sign and witness the application.
Family Lawyers can assist you with the application if you need help completing it. A divorce lawyer can help you through the process, explain how the law applies to your particular situation, assist you with legal questions, and appear at your divorce hearing so that you receive a final divorce decree.
Step 4: Submit the application
You should complete and file your divorce application online via the Commonwealth Courts Portal. You will need to arrange for digital copies of the paperwork, including your marriage certificate, a scanner, and a credit card, to pay the application fee.
Step 5: Be notified of your court date
Upon submitting the application and paying the fee, a sealed copy containing a file number and hearing date is available for download from the portal once the application is submitted and the fee is paid.
Step 6: Complete and sign the Affidavit for eFiling (Divorce)
Upon completing the application, the portal will display an Affidavit for E-Filing Application (Divorce) that must be signed in front of a legal authority such as a lawyer and then uploaded into the portal as a scanned image.
Step 7: Notify your spouse (if filing separately)
You can download sealed copies of the Affidavit and the sealed cover sheet as soon as the scanned image of the Affidavit is uploaded.
In accordance with Federal Circuit Court Rules, you must serve your former spouse with sealed documents. Among these rules is the requirement to serve the other party with the papers before the trial date.
Step 8: Submit your service documents (if filing separately)
Once you’ve served the papers on your ex-spouse, you will need to file an affidavit of service via the portal.
Step 9: Hearing in Court
Your divorce application will be heard at a hearing. Having filed your application, you should have already known the date of your hearing.
Hearings will be held if:
An individual filing for divorce:
l If the marriage does not produce children, the Court does not require attendance.
l The Court requires the attendance of children under 18 years of age.
Divorce petition filed jointly:
l The only time you’ll need to appear in Court is at question 2(A).
Step 10 – Certificate of Divorce
If the Court finds that the couple has grounds for divorce and that the divorce process has been followed, they will grant a divorce order. If you do not follow the divorce process and serve your spouse, the Court may reschedule the date to give you time to do so.
You may be required to move the court date if you do not follow the correct process and serve your spouse. When a divorce order is granted, the courts declare it final one month and one day after the date of the court hearing.
Until the divorce order is finalized, you can’t remarry during the period between granting the divorce and making it final.
Settlement proceedings after divorce
You must remember that your divorce will only legally end your marriage. When it comes to deciding who gets what, making custody arrangements, drafting parenting orders, and settling any debts and assets, you’ll have to go through the settlement process.
The only time that you have to divide up your assets and settle any debts or debts is within 12 months from the date that your Final Divorce Order is granted.
The settlement process after divorce can be challenging, so it is highly recommended you seek the assistance of a family law expert.
The parties should not:
- Misuse the pre-action procedure (causing unnecessary expenses or delays or harassing the other party).
- Never raise irrelevant or polarizing issues in correspondence with another party.
If the parties are not related, the Family Court or Federal Circuit Court has jurisdiction to make parenting orders.
- Married,
- Having never been in a long-term relationship, or
- When a relationship is de facto.
In general, the Court issues orders concerning:
- (Residence Order) The home of the child or children.
- (Contact Orders) Spending time with the parent or another party that the child or children do not live with.
- (Specific Issues Orders) Concerning the child or the child’s care.
For more help and details, please contact us.
