The divorce process can seem complicated and overwhelming – but here are 14 key things you should know about the divorce process.
Do we need to agree to divorce?
No. If one spouse believes the marriage has irretrievably broken down and there’s no prospect of a reconciliation, it is highly unlikely that a Court will not grant a divorce order.
Does someone need to be at fault?
The Australian Family Court applies the no fault rule, meaning that neither spouse needs to show who was at fault for the breakdown of the marriage.
How long must we separate for before we can divorce?
You need to have been separated for a minimum of 12 months before you can apply for a divorce.
For marriages that have lasted less than 24 months, you must first attend mediation to discuss the possibility of a reconciliation.
Can I get divorced in Australia if we got married overseas?
Yes. As long as the spouse applying, is an Australian citizen or permanent resident and has been residing in Australia for over 12 months, or intends to reside permanently in Australia.
What documents do I need to start the divorce process?
The most important documents to start the divorce process are your marriage certificate, the date of your separation, and an understanding of what the current care arrangements are for the children, if there are children under 18 years of age.
Your lawyer or mediator will advise you on what other documents will be required, to finalise the divorce process.
How do we tell the children we are getting divorced?
The best thing would be to first discuss with your spouse, how and how much you tell the children. Your main aim should be to minimise their level of anxiety as far as possible, and much of that will depend on their age and maturity. It’s best not to overwhelm them with too much information, and not to lay any blame on each other.
In the beginning all they need to know is where and with whom they will live and how often will they see their other parent. Reassure them that you both still love them and that you’re still one family but will perhaps be transitioning to living under two separate roofs. Nothing else changes for them.
Do I need to move out of the family home?
For the separation period, both spouses may continue living in the same house, if finances do not allow for one spouse to move out. After the mandatory separation period, couples are faced with several choices on who goes and who stays, which they need to decide between themselves.
One person may be able to remain in the family home. Another option might be that the family home is sold and both parties find new accommodation.
Am I entitled to spousal maintenance?
You could be, if you can show that you’re unable to reasonably sustain yourself and that your ex-spouse has the financial ability to support you.
You would need to consult a divorce lawyer in Perth to find out exactly what you might be entitled to.
How do we decide where the children will live?
This is one issue that can only be discussed and agreed upon by both spouses. If you have custody of the children and need to move out, you might want to try to find accommodation as close as possible in order for the children to attend the same school, stay in contact with their friends and thus disrupt their lives as little as possible.
How do we decide who gets what?
Other than the process being just and equitable, under Australian Family Law, there is no set formula as to who gets what in a divorce. Each divorce has its own set of circumstances and divorcing couples are strongly urged to agree on as much as possible between themselves.
If a Binding Financial Agreement exists, it will be a matter of following the terms. If no such agreement exists, it can become tricky where professional legal or financial assistance may be required.
Can I divorce without going through the Courts?
Most property settlements and parenting matters in Australia do not go through the Courts. Many divorcing couples choose to divorce through mediation followed by a collaborative divorce, where each spouse appoint a lawyer and reach agreement without going through the Court.
How much will proceedings associated with my divorce cost?
This depends entirely which route you will follow and how long it may take. The quickest and least costly method is mediation, where the fee is set at the beginning and usually fixed. That too will depend on how quickly you both reach a final settlement, but will still be far cheaper than going through the Courts.
When you file an application for Divorce with the Court, there is a filing fee of around $900.
Should I hire a family lawyer?
If you’re divorcing through mediation, it is not mandatory to hire a lawyer, but considering what is at stake here, it’s always wise to hire a family lawyer to know exactly what your legal rights are.
How long after we divorce can I remarry?
You can remarry after divorce one month after your divorce order is granted.