There is no formal process for a separation for married or defacto couples. However there is a formal Court process for divorce for married couples.
When can I get a Divorce?
You can apply for a divorce if you can satisfy the Court that you and your spouse have lived separately and apart for 12 months and 1 day and that there is no likelihood that you will resume married life.
How do I apply for a Divorce?
To apply for a divorce, you must complete an Application for Divorce and file it with the Court and pay the Application fee. You may be eligible for a fee exemption or waiver.
Do my spouse and I have to apply together for a Divorce?
No. You may apply for a divorce yourself, you will be the sole applicant and your spouse is the respondent.
If you do apply for a divorce with your spouse, it is a joint application and you and your spouse are joint applicants.
Do I have to have a lawyer prepare the Divorce Application?
No. You may prepare your own divorce application and the Court will be able to assist you with the Application for Divorce Kit which has instructions for completing the application and filing it. (Insert link to Divorce Kit here).
What does the Court consider when it determines my divorce application?
The Court is not concerned as to why the marriage has ended. The only grounds for divorce is that the marriage has broken down irretrievably. This means that there is no likelihood that you will get back together.
Does the Court worry that there are children involved?
If the children involved are under 18 years of age, the Court will grant a divorce only if it is satisfied that proper arrangements have been made for the children.
What is the Court Application fee for a Divorce?
$432 unless you are eligible for an exemption or waiver of the fee.
What are the exemptions for the Application Fee?
If you hold a government concession card or you are experiencing financial hardships you may be eligible for an exemption or a waiver of the fee.
Do I have to attend the Divorce hearing?
If there is no child or children of the marriage aged under 18 years, you are not required to attend the Court hearing.
If there is a child of the marriage aged under 18 years and you have made a joint application neither you nor your spouse are required to attend the Court hearing.
If you have made a sole application and there is a child aged under 18 years of the marriage you must attend the Court hearing.
I have applied for a divorce, can I set a wedding date for my new marriage?
No. You should not remarry until the divorce order is finalised. In most cases, this is one month and one day after the divorce hearing. However, you should not assume that the divorce will be granted at the first Court hearing. You may be asked to provide the Court with more information and the divorce will be then be heard at another Court hearing.
If you intend to remarry a Notice of Intended Marriage is given at least one month before the wedding date to comply with the Marriage Act 1961.
We have been married for less than two years is there anything else that we have to do?
Yes, if you have been married less than two years and wish to apply for a divorce you must attend counselling with a family counsellor to discuss the possibility of reconciliation with your spouse. If you have not attended counselling you must seek the permission of the Court to apply for a Divorce.
The two years is calculated from the date of marriage to the date that you apply to the Court for the divorce. You and your spouse must also have been separated for 12 months and one day before applying for a divorce.
I can’t find my spouse to serve the Divorce Application, what can I do?
If you have made a sole application, you need to serve the divorce application on your spouse. If you have taken all reasonable steps to locate your spouse and you are unable to do so you can apply to the Court for substituted service or a dispensation of service.
We will be able to advise you further if this is the case.