A common enquiry that we receive at West Coast Legal is, “How do I get a divorce?”
Our first response is that you need to file a Divorce Application through the Family Court.
We then go through the following facts:
Do I need to prove fault?
In Australia there is no need to prove fault to apply for a divorce, this is known as a no fault divorce. The Family Court however must be satisfied that your marriage has irretrievably broken down.
To be eligible to apply for a divorce the following three requirements must be met:
1. You and your spouse must have formally separated for at least 12 months;
2. At least one of you has been an Australian resident; and
3. If you have children who are under 18 years of age, there are arrangements in place for their care.
If I am separated from my spouse, are we still married?
Yes, you are still married. You may even be in the tricky situation of being separated and living in the same house as your spouse.
How do I file for divorce?
Thanks to modern technology you can apply for a divorce online using the eCourts portal. We recommend organising your documents before starting an application to make the process easier. You can either file a joint application, where both parties agree to divorce, or a sole application.
You will need a scanned copy of your marriage certificate to upload.
Depending on your circumstances, you may be required to upload additional documents. These circumstances include:
· You were separated under one roof; in which case you will need to file an affidavit;
· Your marriage certificate is not in English;
· You have been married for less than two years.
You must register for an eCourts Portal account to complete an application. You can do so by clicking here. If you need a break, we recommend saving the application, so you don’t lose your work
Print off a copy of your application and sign the Affidavit of eFiling before an authorised witness. This will need to be uploaded.
If you are applying for joint divorce, there is no need to serve the divorce papers on your spouse. However, it may be best to check with them that the details you have entered are correct.
If you are applying as a sole applicant, ensure to serve the application and the Marriage, Families and Separation Brochure on your spouse. You will have to arrange for someone other than yourself to serve these documents. Ensure you have complied with all the service requirements; you can find out more here.
To finalise the online application after you have uploaded your documents, pay the application fee using a credit/debit card and select a date and time for the divorce hearing. Joint applicants are not required to attend court, however sole applicants must attend.
On average, the divorce order will come into effect one month and one day after the divorce is granted.
How much does a divorce cost?
An application for divorce is $940. However, you may be eligible for a reduced fee if you:
· Hold a concession card; or
· You receive Legal Aid, Youth Allowance, Abstudy or Austsudy payments.
If you are a sole applicant, you may face additional costs if you choose to serve your documents by using a professional process server.
Can I apply for a divorce if I have been married for less than two years?
Yes, you may apply for a divorce, however you must first attend marriage counselling and have been separated for at least 12 months. The purpose of the counselling is to consider reconciling with your spouse; however, we understand this may not be realistic in some circumstances.
You will be given a signed certificate as proof you attempted counselling. This is to be uploaded with your application.
If both you and your spouse do not attend counselling, you will have to complete an affidavit outlining the reasons why. Usually, the court will only be satisfied if there are special reasons why, and you will need to attend a court hearing.
What happens if we are separated but still living together?
The court refers to this as being ‘separated under one roof’. You may still apply for a divorce, as long as you meet the three requirements, but you will need to complete an affidavit. The purpose of this affidavit is to explain to the court how you remained separated despite living in the same house. This affidavit must be supported by a third party, who is to complete their own affidavit to support your explanation.
I was married overseas; can I apply for a divorce?
Yes, as long as you meet the three requirements. If your marriage certificate is not in English, you must get your certificate translated and file a supporting affidavit. Here at West Coast Legal we have experience working with non-Australian marriage certificates.
What happens to my property and children?
Whilst a divorce will legally separate you from your spouse, and allow you to remarry, it does not sort out who gets what property or determine care arrangements for the children. This means a divorce order does not split your property.
How long after my divorce can I apply for a property settlement?
If you are divorced but have no property settlement you have 12 months from the date of your divorce becoming final to apply for property orders. If 12 months has passed by and you wish to resolve a property dispute, you must first ask for the Court’s consent.
Arrangements for the children’s care and property settlement will be made in a separate application. If you are unsure about what property will form the pool of assets and liabilities, it is always recommended to seek legal advice. For example, you may have a house in your name and you are not sure how the law will deal with it.
Seek Expert Advice
West Coast Legal are affordable Australian family and divorce lawyers in Perth who can assist you with your divorce. We have assisted clients all across Western Australia from Joondalup, to Claremont, Booragoon and even Busselton.
If you are considering applying for a divorce, or have questions about how to make arrangements for the children or want to negotiate a property settlement, please call us on (08) 9325 3334 or email us at reception@westcoastlegal.com.au to arrange for a free 15 minute phone consultation.
