Divorce

Divorce is not the end of a family; it’s a reorganisation.

What does a divorce actually mean?

A divorce legally dissolves your relationship as a married couple – that’s it.
Being divorced doesn’t mean the financial aspects of your relationship are automatically dealt with and tied off for good. A divorce also doesn’t mean that you automatically resolve parenting and child support matters.
For you to achieve peace of mind about your financial future, you should consider making official any agreements reached about the split of assets, debts, superannuation, and resources, and any ongoing financial support for yourself or your partner (known officially as ‘maintenance’).

If you and your partner don’t agree have an agreement regarding maintenance or your financial split (known officially as a ‘property settlement’), then you can apply to the Court to ask a Judge to make a decision for you. The same goes for parenting and child support.

What happens if we divorce, but don't make our agreement about our financial split or maintenance official?

A divorced couple has 12 months from the date of their divorce to either make their agreements about their financial split and maintenance official or, if they don’t agree about one or both subject matters, then apply to the Court for a Judge to decide for them.

If a divorced couple does neither of those things within the 12 months after the divorce, then if one or both wanted to agitate for a financial split or maintenance after the 12 months, they would require the Court’s permission to do so.

What is the effect of a divorce?

The effect of a divorce does a few things:

Firstly, suppose you and your partner haven’t already made your financial separation and maintenance agreement(s) official in a Binding Financial Agreement or a Financial Consent Order (Click here for more info on this). In that case, you have 12 months from the date of your divorce to make your agreement official or, if you don’t have an agreement, apply to the Court for a decision.

Secondly, depending on which State or Territory you live in, if you have a Will, a divorce may either invalidate your Will altogether or mean that any gifts you’ve given to your spouse under your Will are invalidated.

The gift would be returned to your estate and distributed between the remaining beneficiaries.

Thirdly, a divorce means that you or your partner can remarry if you want to.

When applying for divorce, what else do I need to consider?

If you and your spouse lived together separated under one roof in the 12 months preceding your Application for Divorce, then two Affidavits must be submitted to the Court.

The Affidavits must give evidence that your relationship changed after you separated.

You and your spouse can do an Affidavit each, or alternatively, you can have a third person go on Affidavit with what they witnessed as to the change in your relationship.

To learn more about what needs to be included in this Affidavit, click here.

When applying for divorce, what else do I need to consider?

Your Will

Any Enduring Powers of Attorney (health related & financial)

Superannuation death beneficiary nominations

Life insurance policy beneficiaries

The 4 Step Process

STEP 1: Prepare the paperwork

Prepare your Application for Divorce through the Commonwealth Court’s Portal. Upload all of the required supporting documents.

STEP 2: Sign, submit and serve

Print your divorce application paperwork, correctly sign and submit to the Court via the Commonwealth Court’s Portal. Serve your partner with the paperwork (if applicable).

STEP 3: Divorce hearing

If required, attend the Divorce Hearing. If the conditions for a divorce are satisfied, your Application will be approved.

STEP 4: Divorce official

If the conditions for the divorce were satisfied, then 30 days later you are officially divorce. Your Divorce Order becomes available for download from the Commonwealth Court’s Portal.

There can be reasons why holding off on applying or objecting to a Divorce Application may be relevant to you. Legal advice on this is always a good idea.

Applying for divorce is relatively simple

You can make a sole application for divorce (which is by yourself) or make a joint application for divorce (together with your spouse).

Joint application

You and your partner apply jointly for a divorce.

If you have a child under 18 years, then you’re not required to attend the divorce hearing.

You don’t have to prove that you and your partner have notice of the divorce application because you’re applying together.

Sole application

You or your partner apply by yourself for a divorce.

If you or your partner have a child under 18 years, then the person applying must attend the divorce hearing.

The person applying for the divorce must prove that the other person has notice of the proceedings (i.e. they’ve been served).

What are the major differences?

Joint application for divorce

  • Divorce Application filing fee is $940 (or $310 *T&Cs)
  • Service of the Application on 
partner required
  • Requires attendance at Court for 
the divorce hearing
  • Affidavit of Service required
  • Affidavit Proving Signature required (if Acknowledgement signed)

Sole application for divorce

  • Divorce Application filing fee is $940 (or $310 *T&Cs)
  • Service of the Application on 
partner required
  • Requires attendance at Court for 
the divorce hearing
  • Affidavit of Service required
  • Affidavit Proving Signature required (if Acknowledgement signed)

Resources

Sometimes, it feels much easier to be get what you need without having to actually speak to someone

Get plain English, practical information and resources to help you in your separation without breaking the bank.

If you’re unsure on what you need, call our team on (02) 6100 3629.

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