How to File for Divorce in Australia

A divorce is never a decision to take lightly. Not only is it a massive personal decision, but the legal ramifications are far-reaching. For those going through the proceedings, it can be difficult to know where to start, especially considering the significant emotional turmoil during such a time.

When going through the ins and outs of filing for divorce the following is often considered: what is it, how do you apply for one, and what can the legal process look like? Although it’s never easy, Nardi Lawyers are here to help make the process as smooth as possible. 

Explore what a divorce is, how to apply for a divorce, what to expect, and how an experienced lawyer can help represent you when it’s time to go to court.

What is Divorce?

When people get married, it constitutes a legally binding contract. A marriage contract stipulates that the couple who sign it are responsible for the care and support of the other and any children born during the marriage. It also lays out terms of property ownership, custody arrangements, and inheritance rights. If a marriage has a prenuptial agreement, then the terms of that are also included in the marriage contract.

A divorce occurs when the marriage is dissolved legally for any number of reasons. The stipulations of the marriage contract no longer apply, and the couple’s legal obligation to each other ceases. In some countries, a divorce can only be done if one member of the couple has done something that violates the terms of the marriage contract. This can be infidelity, abuse, theft, or anything else that breaks the contract’s clauses.

Australia, however, has practised what is called “no-fault” divorce since 1975. A no-fault divorce is when a married couple wishes the marriage to be dissolved even though no breach of the marriage contract has been committed. This allows divorces to be sought out for reasons such as marriage breakdowns or couples growing apart. 

With this in mind, how should you go about applying for a divorce?

If you’re going through a divorce or separation, make sure that you have all the information. Book a consultation with some of the most outstanding family lawyers in Melbourne, Nardi Lawyers, by calling 0491 626 283.

Applying for Divorce

According to this report by the Australia Bureau of Statistics, in 2022, 49,241 divorces were granted in Australia, with the median duration of marriages increasing to 12.8 years. You can apply for divorce in Australia if you meet any of the following conditions:

1. If you consider Australia your home and intend to reside in Australia indefinitely.
2. If you have Australian citizenship by birth, descent, or by successful citizenship application.
3. Mostly live in Australia and have been living in the country for at least 12 months before filing for divorce.

After applying for divorce, you must satisfy the court that you and your former partner are separated and have been living apart for 12 months, with no reasonable chance of getting back together or reconciling. There is an allowance for couples that are unable to live apart during their separation, which is referred to simply as “separated but living under one roof.”

If you were married overseas, and your marriage is recognised in Australia under Section IV of the Marriage Act 1961, you must provide the court with a copy of your marriage certificate.

For full details regarding the laws and legal process of getting a divorce, we recommend getting in touch with Nardi Lawyers, one of the top family lawyers in Craigieburn, Epping, Heidelberg, and surrounding areas.

What About Children and Finances?

Suppose there are children under the age of 18 in your marriage. In that case, a court can only grant a divorce if the couple provides sufficient evidence that they have been thoroughly considered and arrangements made for their care after the divorce has gone through.

This will include information about the children, who they spend time with, who provides the most financial support, and more. 

It is important to note that the divorce process does not contain details about the care of children, division of assets, or management of finances. These things must be worked out in one of three ways:

1. Dispute resolution can be used to narrow down or work out points of contention.
2. You and your former partner can agree and present it to the court.
3. You and your ex-partner can seek orders from the court where no agreement can be reached.

As for property and financial agreements, these must be sought within twelve months after the divorce has gone through unless the divorcees can agree on their own.

Nardi Lawyers lawyers is one of the foremost legal aid agencies in the state, specialising as family lawyers that service in Dandenong, Doreen, Greensborough, Mernda, and surrounding areas across Melbourne.

Divorce Proceedings Work – What To Expect

If you and your partner are seeking a divorce, what are some recommendations, and how can these proceedings work between you? Here are some things to expect. 

1. A separation can precede your divorce. One member may leave the marital home when a couple agrees to separate or divorce. Each person will effectively live their life as though they are divorced. 
2. You and/or your partner may exchange emails or other written communications expressing your desire to divorce. These can be used as physical evidence of the fact. After living apart for twelve months, if you and your former partner agree that the differences in the marriage are truly irreconcilable, you may apply for a divorce. 
3. If you and your partner cohabitated during your separation, you must supply affidavits from friends and family with supporting evidence stating that this was the arrangement.
4. If you and your ex-partner are amicable, it can be worth organising your finances and determining how they will be split or managed. In the case of non-amicable divorces, couples will likely need to go through the court process in this case.
5. Once the finances are dealt with, you and your partner may enter into talks regarding the care and financial support of any children under 18 years old. These agreements are formalised in two documents: the Parenting Plan and the Child Support Agreement.

As stated by Legal Aid, a parenting plan is a signed written agreement between parents that sets out care arrangements for their children. Although the Parenting Plan is not strictly a legal requirement, it is done in the children’s best interests. The Child Support Agreement, however, is compulsory and a binding agreement.

Once this is all taken care of, and you and your partner have been separated for 12 months, you can apply for a divorce and begin the legal proceedings.

Nardi Lawyers – Family Lawyers in Melbourne

Going through a divorce is difficult enough without worrying if your family lawyer gives you trustworthy representation. Nardi Lawyers is a small team based in South Morang that is passionate about providing outstanding law counsel to people who need it. Our founder, Michael Nardi, in 2011, was one of the youngest practising lawyers in Australia. 

Whether you’re looking for intervention orders, professional legal advice on traffic law, or personal family matters, hiring Nardi Lawyers ensures that you’re getting the highest quality legal aid and the genuine support of some of the youngest and most practised lawyers in the state. Call us today on 0493 141 014 or email us at [email protected]. As a trusted firm with a big vision, you’ll never feel alone in your case.