Getting a divorce does not happen overnight. There is a process that all applicants must follow before legal separation becomes official.
While it is possible to go through the divorce process yourself with the help of online kits and sourcing information from the internet, performing a DIY divorce can be can be tricky. The laws involved can get confusing, and if things get out of hand it’s much harder to retrospectively obtain a lawyer to fix the mess than preventing it in the first place.
Steps on how to get a divorce
- The first step in getting a divorce is separation. Couples must be separated for at least 12 months before they can apply for a divorce. If one party can’t afford to move out of the family home during this time, couples are allowed to live together in the same home and still be classified as separated.
- Next, a divorce application form must be filled out and submitted.
- If you are applying as a sole party, the application needs to be formally served to the other party.
- Finally, a hearing date will be set and if your application is successful, you will be granted a divorce order.
The criteria to get a divorce
There are certain legal criteria you need to satisfy in order to request a divorce. The criteria are:
- You or your spouse must regard Australia as your home and intend to live in Australia indefinitely, or
- You or your spouse are an Australian citizen by birth, descent or citizenship, or
- You or your spouse live in Australia and have been for 12 months immediately prior to applying for divorce.
As stated above, you need to be separated for a minimum of 12 months with no likelihood of reconciliation before applying for a divorce.
If you’ve been married for less than two years
If you wish to apply for a divorce but have been married for less than two years, there are further requirements you need to satisfy.
The two-year period is calculated from the date of the marriage to the date of applying to the Court for a divorce order. The 12-month separation rule still applies regardless of how long you have been married.
There are two options if you’ve been married for less than two years:
- You must attend counselling to discuss the possibility of reconciliation.
- You need to request permission from the Court to apply for a divorce.
If you attend counselling and still choose to go through with the separation, the counsellor will need to complete a certificate that states the discussion took place.
Opposing a divorce application
There are few situations where an application for divorce can be opposed. This is only permitted when:
- There has not been a 12-month separation.
- The court does not have jurisdiction to hear the application.
If you object to the divorce or to facts stated in the application, you must complete and submit a Response to Divorce and you must appear in person at the hearing. The form must be filed within 28 days of the original application being served.
Further legal requirements
There are other legal requirements that need to be considered when applying for a divorce. In terms of the hearing, in most situations it is not a requirement that you attend in person. You are not required to attend unless you have applied as a sole applicant and there is a child under the age of 18 involved. If you cannot attend the hearing, you can request to appear by telephone.