Divorce – All you need to know

In Victoria as well as the rest of Australia, divorce is the legal ending of a marriage under the Family Law Act 1975. It simply makes the marriage considered legally over. It doesn’t do anything to deal with property, finances or child custody.

Some key things to know up front:

• Australia has no-fault divorce, meaning the court doesn’t concern itself with who was “to blame” for the breakdown of the marriage.
• The legal grounds is irretrievable breakdown, shown by you and your spouse being separated for at least 12 months with no reasonable likelihood of reconciliation.
• If you’ve been living together but separated under the one roof for part or all of the 12 months you may need to provide extra evidence.

Here’s how things generally proceed when someone seeks a divorce in Victoria:

• Check eligibility and prepare documents. Before you can apply for a divorce, you must be separated from your spouse for at least 12 months and one day. You must also be an Australian citizen, a permanent resident, or have lived in Australia for at least 12 months. If you were married overseas, you’ll need your marriage certificate (and a certified English translation if applicable) or a sworn affidavit explaining why you don’t have it.
• File your application. You can apply for a divorce on your own (sole application) or with your spouse (joint application) through the Commonwealth Courts Portal. You will need to provide your marriage certificate, details of your separation, and information about any children under 18.
• Serve the documents (for sole applications). If you are the only one applying, you must legally serve the application on your spouse. You cannot do this yourself. There are specific rules for proper service. If your spouse cannot be located or does not respond, you may be able to apply for substituted service.
• Attend the court hearing. A physical court hearing may not be necessary, in the case of joint applications and applications without children. However, you will need to attend court if:
  • You filed a sole application and there are children under 18.
  • Your spouse objects to the divorce.
  • There are any procedural issues, such as proving your separation while living in the same house.
• Receive the divorce order. If the court is satisfied, it will grant a Divorce Order. This order becomes final one month and one day after it is pronounced. At this point, you are legally divorced and can remarry. You will receive a divorce certificate as proof.
• Address other legal issues. The divorce process itself does not resolve matters related to child custody, parenting arrangements, or financial and property settlements. These issues must be handled separately. There is a deadline for property settlement applications, which is typically 12 months from the date the divorce order becomes final. It is often faster and less expensive to resolve these issues through negotiation, such as mediation, rather than in court. You do not have to wait until the Divorce application is made.

• 12 months separation before you can file is mandatory. That’s non-negotiable (unless you get back together for a short time, which has its own rules).
• Once you file, the hearing date is usually set for about two month later.
• If there are disputes (about service or living together under one roof), it can take longer and another hearing set to allow parties to file further evidence.

These are approximate; your situation can make a big difference. Prices are current at time of writing.

The following issues can delay or complicate things:

• Living Under the Same Roof but Separated: Proving you have been separated for 12 months can be more complex if you and your former spouse still live in the same house. You will need to provide additional evidence to show you are living separate lives.
• Children Are Involved: When there are children under 18, the court requires more information about their living arrangements and care.
• Issues with Serving Documents: If you cannot locate your spouse you may need to apply for special court orders to resolve this issue.
• Missed Deadlines: Failing to settle your matrimonial property or file applications for property within the required deadlines (typically 12 months from the divorce date) may mean you need special permission from the court to proceed or risk losing your right to make a claim.

• Keep Thorough Records: Maintain all documents, correspondence, and financial records. This will be crucial if any disputes arise.
• Explore Mediation: Before going to court, consider mediation or other forms of dispute resolution. This is often less expensive, less stressful, and better for maintaining a civil relationship, especially when children are involved. Grange Lawyers can advise you and negotiate on your behalf.
• Get Legal Advice Early: It’s a good idea to seek legal advice as soon as possible, even if it’s just for an initial consultation. Organizations like Victoria Legal Aid can provide free or subsidized assistance.
• Know Your Rights and Deadlines: Be aware of your rights concerning finances and parenting, and keep track of all important deadlines so you don’t miss out on what you are entitled to.
• Try to Stay Cooperative: An amicable approach with your former spouse can make the entire process simpler and faster, particularly if you’re able to file a joint application. This is not always possible when family violence or financial control has been an issue during the marriage.

Grange Lawyers recognises that no two divorces are the same. We provide tailored, professional representation focused on your individual circumstances and objectives. By working closely with you, we develop a strategy to protect your interests and secure your future. Our team has extensive experience across all areas of family law and can assist you to achieve a fair and practical outcome, whether through negotiation, mediation or litigation.

You don’t need to manage this process alone. We’ll guide you through each step, demystify the legal requirements and ensure your position is clearly presented. Contact us today to arrange a confidential consultation and begin moving forward with confidence.