Once you have been separated for 12 months, you and/or your ex-spouse can apply for divorce online on the Family Law Courts Portal, Comcourts.
Once you have completed your application and have provided the necessary documents (such as your marriage certificate), you will need to swear your application in front of an authorised witness. If you and your ex-spouse are applying jointly, you both need to swear the application.
Once sworn, the application is then filed online and you will be provided with a court date, usually 3-4 months’ away. If you are applying solely, then you will need to arrange to serve the filed documents on your ex-spouse.
At the hearing date, provided that all the requirements of divorce have been met, the court will make the divorce order. Your divorce order will come into effect one month and one day after the hearing date and you will then be able to access a court-sealed copy from Comcourts.
There are a few important things to consider when applying for divorce:
- If you apply by yourself, then you will need to arrange for your ex-spouse to be properly served with the divorce documents. If you and your ex-spouse apply jointly, then service of the documents is not required, though you will both need to swear the application.
- If you have been separated for more than 12 months but are still living together, or you haven’t been living separately for at least a 12-month period since separation, then you and your ex-spouse / and independent third party will need to file affidavits giving evidence that you and your ex-spouse have actually separated. There are a range of factors that determine whether you’ve been separated or not so it’s best to engage a lawyer to ensure that these affidavits are done correctly to avoid delay in your divorce.
- If you can’t locate your ex-spouse and can’t serve them with the documents, you will need to apply to the court for orders allowing you to serve your ex-spouse via other methods, such as via email or social media (substituted service orders). If you are unable to contact them at all, you can apply for orders to remove the requirement to serve the divorce documents completely (dispensation of service orders). These applications are usually quite technical and so many opt to engage a lawyer to assist.
- In Australia, getting divorced only means that you are no longer spouses on paper. While it means that you can get remarried, it doesn’t mean that you have had a property/financial settlement. It is critical that you enter into a legally-binding settlement with your ex-spouse to ensure that any assets that you (or your future partner) may accumulate in the future are protected from a claim by your ex-spouse. A comprehensive property settlement is also critical in ensuring that you aren’t responsible for any debts that your ex-spouse may incur in the future.
Oikos Family Law are experts in divorces and property settlements and have some of the best family lawyers in Ringwood and the Eastern suburbs.
If you’re considering divorce and separation and need advice, please contact us on 0421 397 316 or at jlok@oikosfamilylaw.com.au for an obligation free chat.
