Family law
Divorce in NSW
A divorce order ends the marriage. It does not divide your property, deal with superannuation or decide arrangements for the children, and once it takes effect a twelve month clock starts running on your right to apply for a property settlement.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Bella Vista, appearing in the Federal Circuit and Family Court at Parramatta.
Divorce is one of three separate things
People use “divorce” to mean the whole separation. Legally it is only one part of it, and the three run on different rules and different timetables.
The divorce order
Ends the marriage. Requires twelve months of separation and very little else. Straightforward in most cases, and the part people worry about most and need to worry about least.
Property and finances
Divides assets, debts and superannuation, and deals with spousal maintenance. Entirely separate from the divorce, and it can be resolved before you divorce, after, or without ever divorcing at all.
Arrangements for children
Where the children live and how they spend time with each parent. Also separate, and not decided by the divorce, though the court must be satisfied proper arrangements are in place before granting one.
The twelve month clock, which is the reason to take advice before you apply. Once a divorce order takes effect, you have twelve months to apply to the court for a property settlement or for spousal maintenance. After that you need the court’s permission to bring an application at all, and permission is not automatic. People routinely get divorced quickly to draw a line under it, leave the property alone because the house is still in joint names and nobody is fighting, and find out later that they have lost the right to deal with it. If your finances are not sorted out, talk to us before you file, not after.
Can you apply?
There is only one ground for divorce in Australia: that the marriage has broken down irretrievably. Nobody has to prove fault, and who left, or why, makes no difference to whether the order is granted.
- You are legally married, and you can produce your marriage certificate
- You or your spouse is an Australian citizen, is domiciled in Australia, or has been ordinarily resident in Australia for at least the twelve months before filing
- You have been separated for at least twelve months and one day
- There is no reasonable likelihood of getting back together
- Where there are children under 18, proper arrangements have been made for them, or there are special circumstances explaining why not
Married less than two years? You cannot simply apply. You will need a certificate confirming you have attended counselling with an approved counsellor to discuss reconciliation, or the court’s permission to proceed without one. This catches people out, and it is worth knowing before you start rather than after the application is rejected.
What counts as separation
Separation is not a form you lodge. It happens when one of you decides the marriage is over, acts on that decision and communicates it to the other. Only one of you needs to have made that decision.
Separated under one roof
You can be separated while still living in the same house, which is common where neither party can afford to move out. The court will want more than your word for it. The application has to be supported by an affidavit from each of you explaining the change in the relationship, and by an affidavit from an independent person, usually a family member, friend or neighbour, who can confirm what they observed.
The kinds of things that matter are sleeping arrangements, whether you still share meals, finances and household tasks, whether you present publicly as a couple, and whether anyone else was told. It is worth getting the evidence in order early, while people remember.
If you got back together
A reconciliation of less than three months does not reset the clock. The period before and after the reconciliation can be added together, provided the total separation is at least twelve months. If you resumed the relationship for three months or more, the twelve months starts again from the later separation.
The process
How an application works
Sole or joint
A joint application is made by both of you together. Nobody has to be served, no affidavit of service is needed and neither of you has to attend court. Where you are on speaking terms it is faster, cheaper and much less confrontational. A sole application is made by one spouse alone.
Filing
The application is filed electronically through the Commonwealth Courts Portal, with the marriage certificate and, where relevant, evidence of citizenship or residence. There is a filing fee, and a reduced fee is available for concession card holders and in cases of financial hardship.
Service, for a sole application
Your spouse must be served, and you cannot serve the documents yourself. Service must be effected at least 28 days before the hearing where they are in Australia, or 42 days where they are overseas, and proof of service is filed with the court.
The hearing
On a joint application, or a sole application with no children under 18, nobody needs to attend and the matter is dealt with in chambers. On a sole application where there are children under 18, the applicant must attend, though this is usually by telephone or video rather than in person.
The divorce order
If the court is satisfied, it makes a divorce order. The order does not take effect immediately.
One month and one day
The order takes effect one month and one day after it is made, and only then is the marriage legally over. You cannot remarry before that date, and this is the date the twelve month property clock runs from.
In practice, expect several months from filing to the order taking effect, depending on how the court’s lists are running.
What to deal with once you are divorced
The order arrives and most people file it and move on. These are the things that quietly cause problems years later.
- Your will. Divorce cancels gifts to a former spouse and their appointment as your executor, but it does not revoke the rest of the will and it can leave the document making no sense. Make a new one. More on wills.
- Your power of attorney and enduring guardianship. If you appointed your former spouse, revoke and replace those appointments. This is the one people forget, and it is the one that matters if you are ever incapacitated. More on powers of attorney.
- Your superannuation death benefit nomination. Superannuation does not pass under your will, and a nomination in favour of a former spouse may still be acted on by the fund. Check it and update it.
- Life insurance and other nominated beneficiaries. Same issue, same fix.
- Property held as joint tenants. Where the family home is still in joint names as joint tenants, it passes automatically to the survivor on death, regardless of any will. This should be dealt with as part of the settlement.
- Your name. If you changed your surname on marriage, you can revert using your birth certificate. The divorce order itself is not a change of name document.
When it is not straightforward
You cannot find your spouse
The application can still proceed. The court can order substituted service, allowing service through another person or by other means, or dispense with service entirely where you can show what enquiries you have made.
They will not sign anything
They do not have to. A divorce does not require consent. Once you have been separated for twelve months, a sole application proceeds whether or not your spouse agrees with it.
Married overseas
An overseas marriage is generally recognised here and you can divorce in Australia provided the residence requirement is met. You will need the marriage certificate, and a translation by an accredited translator where it is not in English.
No marriage certificate
A replacement can be obtained from the registry in the state or country where you married. Start this early, because overseas certificates can take months.
Family violence
Your address can be kept off the documents and service can be arranged so you have no contact with the other party. Tell us at the outset and we will structure the application accordingly. More on family violence.
Property is unresolved
This is the real risk, not the divorce itself. If assets, debts or superannuation are still in joint names or otherwise undivided, get advice before the order takes effect and the twelve month period begins.
Common questions
Do I need a lawyer for a divorce?
For the divorce application itself, often not. Where you have been separated more than twelve months, have your marriage certificate and either have no children under 18 or have workable arrangements in place, it is a form and a fee. We will tell you honestly if that is your situation. What you should take advice on is everything the divorce does not cover, particularly property, because that is where the money and the time limit are.
Does it matter who applies, or who left?
No. There is no fault in Australian divorce law. Who applied, who ended the relationship and why have no bearing on the divorce, and none on how property is divided either.
Can I divorce before sorting out the property?
You can, and many people do, but understand the consequence. The twelve month limit for applying for a property settlement or spousal maintenance runs from the date the divorce takes effect. Sorting the property first, or at least getting advice before you file, avoids needing the court’s permission later.
We are still living together. Can we still get divorced?
Yes, provided you have genuinely been separated for twelve months while under the same roof. The application needs affidavits from each of you explaining how the relationship changed, plus an affidavit from an independent person who can confirm what they saw. It is more work than an ordinary application but it is regularly done.
How long does it take?
Several months from filing, depending on the court’s lists, then one month and one day after the order is made before it takes effect. You cannot remarry until that date, so if a wedding is booked, allow considerably more time than you think you need.
What if we get back together?
A reconciliation of less than three months does not restart the twelve months, and the periods either side can be added together. Three months or more and the clock starts again from the later separation.
Will the children be affected by the divorce order?
The order itself decides nothing about the children. The court only needs to be satisfied that proper arrangements have been made for anyone under 18. Where those arrangements are informal and working, that is usually enough. Where they are not, deal with that separately rather than through the divorce.
Are we still each other’s next of kin after separating?
Until the divorce takes effect you remain legally married, which affects wills, superannuation nominations, powers of attorney and who a hospital will treat as your next of kin. Separation alone changes none of that, which is why these documents should be reviewed at separation rather than left until the divorce.
Get the order, and get the rest of it right
We handle the application and, more importantly, tell you what the divorce does not deal with and what the timing means for you. If the property is unresolved, that conversation is worth having before you file. We keep things calm and practical, which is usually what people want most at this point.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Suite 3.13, 33 Lexington Drive, Bella Vista NSW 2153. Monday to Friday 9am to 5pm, and contactable outside those hours.