FAQ’s – Divorce and Separation

  1. Can I get a quick divorce?

No. You and your spouse have to have been separated for at least 12 months before you can apply to the Court for a Divorce Order. If you and your spouse have reconciled for three months or more during that 12-month period, then the 12 months starts again. From the time of filing your Divorce paperwork with the Court, it usually takes about four months before you are actually divorced.

  1. What happens if we have been living together after we separated?

You can still get a Divorce counting your 12 months from when you separated but, you will need to provide evidence to the Court that you were actually separated while still living together. People often separate and continue to live together for a period of time due to financial reasons or children. You can demonstrate that you were separated under the one roof by telling the Court that you have stopped engaging in sexual activity with your spouse, you now sleep in separate rooms, you now have different bank accounts, or that you have been open about your split with friends and family.

  1. We haven’t been married long, does this mean a divorce will take less time?

If you’ve been married less than two years, you and your former partner will need to attend a counselling session and obtain a specific certificate from that counsellor. If this cannot be done for any reason (e.g. family violence, geographical location, etc), an affidavit will need to be filed with the Court stating why you couldn’t attend. After that has been approved by the Court, the usual divorce procedures apply, including the 12-month separation period.

  1. Does a divorce automatically change my name?

No. When the Divorce Order is granted, your name does not automatically change. If you would like to change your name back to your maiden name, or any other name, you need to file the appropriate paperwork with the Victorian office of Births, Deaths and Marriages, or your similar births registry in your state.  If you would like to change the name of any children of the relationship, both parents must give their consent.

  1. Will I be punished if I had an affair?

No. In Australia, we have a “no fault” family law jurisdiction. That means that a party does not need to show blame or a reason why a marriage has broken down. Instead, you just need to show that your marriage has “irretrievably broken down” which is established through your 12 months of separation.

  1. What if may spouse doesn’t want a divorce?

You can still obtain a Divorce Order from the Court so long as you can show that your relationship has “irretrievably broken down” through being separated for 12 months. However, both parties to an Application for Divorce have a right to know about it and so you must show the Court that you have provided a copy of the Application to your spouse.

  1. Once I get my Divorce Order, when can I remarry?

Once you receive your Divorce Order from the Court bearing the Court Seal, your marital status does not formally change to single for another month. Do not remarry immediately, because it may amount to the criminal offence of bigamy.

  1. Does the Divorce include parenting arrangements and a property division?

No. Your Divorce Order simply dissolves your marriage and is separate from any parenting and property orders. If you want to seek formal parenting or property orders from the Court, this is done through a separate Court application and separate Court documents. You do not need to wait for the 12 months to have passed or for the Divorce Order to be granted before you seek orders from the Court about parenting or property matters.

  1. If I got married overseas, can I get a divorce in Australia?

If you live in Australia permanently or are a citizen or resident of Australia, then you can apply for divorce here. You will need to provide a copy of your marriage certificate to the Court and if it’s not in English, you will need to provide additional documentation including a translated version done by a qualified translator.

  1. Is it possible to get divorced without a lawyer?

You can apply for divorce online, prepare the Court documents yourself and attend the hearing before the Court on your own. However, getting legal advice will ensure the paperwork is completed properly and your divorce will be granted in the shortest possible time and that your rights are taken care of.

  1. As a lawyer, do you have one overall tip about divorce and separation?

Seek legal advice and seek it early. Know your rights. Attempting to navigate the legal system on your own can result in mistakes, sacrificing things you may be entitled to and ultimately, costing you more in the long run when you have to engage a lawyer to fix mistakes.

If you have questions or concerns about your divorce and separation, please reach out to Agar Legal as soon as you can.

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