Going through a divorce in New South Wales can be a stressful and emotional experience, but with the right preparation you can approach it with greater confidence and clarity. Governed by the Family Law Act 1975 (Cth) (“the Act”), divorce in NSW requires meeting certain criteria and following specific procedures.
In this guide, we will walk you through the key steps to take when preparing for a divorce, including understanding eligibility, filing for divorce, and addressing any issues related to property division or the care of children.
Key Takeaways
- Divorce eligibility in NSW requires you to be an Australian citizenship or resident that is married, and has been separated for a period of 12 months with no possibility of reconciliation.
- Applications for Divorce can be made either jointly or solely.
- After divorce, property settlements and parenting arrangements are separate processes.
- Legal advice is crucial for understanding your rights and the next steps in divorce proceedings.
- Mediation may be required to resolve disputes before court intervention.
Step 1: Understand the Eligibility Criteria for Divorce
Before you apply for a divorce, you need to meet certain eligibility criteria:
You must be currently married
You must first be married in order to be divorced. If you have been married for less than 2 years, there is a requirement to attend counselling with your spouse and obtain a Counselling Certificate.
If you are unable to attend counselling with your spouse, you should obtain legal advice as you will need to file an Affidavit.
Separation for at least 12 months and 1 day
You must have been separated from your spouse on a final basis for at least 12 months and 1 day before filing an Application for Divorce.
It is possible for you and your spouse to be separated but living under the same roof. You should obtain legal advice about this if it applies to you, as there are additional things you need to prove to show that you have officially separated on a final basis.
While it is generally the case that you must demonstrate the separation period was continuous, there are some exceptions. Notably, under s 50 of the Act, you are able to resume cohabitation on one occasion for a period of less than 3 months. This means that in such a situation, you would not need to re-start the 12 months and 1 day period.
Case law has demonstrated that this can only be on 1 occasion. Resuming cohabitation on 3 separate occasions, although totaling less than the 3 month maximum, does not get captured by the exception.
No Possibility of Reconciliation
The Court will not grant a divorce if there is a reasonable chance of reconciliation between you and your spouse, even if you have been separated for 12 months and 1 day.
Australian Citizenship or Residency
Either you or your spouse must be an Australian citizen, a permanent resident, or have lived in Australia for at least 12 months before applying.
Step 2: File for Divorce
Once you meet the eligibility criteria, you can proceed with filing for divorce. In NSW, you can apply either jointly or solely, depending on whether you and your spouse agree on the divorce.
Joint Application
A joint application is ideal if both parties agree on the divorce and have no contested issues. This is a simpler process, as it does not require personal service of the Divorce Application on the parties.
Sole Application
If you and your spouse cannot agree, you will need to file a sole application. In this case, only one party applies for the divorce.
The divorce application must be filed with the Federal Circuit and Family Court of Australia (“the Court”). As at the date of this article, a filing fee of $1,100.00 applies, and you will need to submit supporting documents, such as:
- A marriage certificate;
- Proof of separation, if applicable; and
- Evidence of Australian citizenship or residency, if you were not born in Australia.
If you were married in Australia, you can obtain a copy of your marriage certificate from the Registry of Births, Deaths and Marriages.
If you were married overseas, you should contact the relevant authority in that country to obtain a copy of your marriage certificate. If your overseas marriage certificate is not in English, you need to have the certificate translated and have an Affidavit of Translation of Marriage Certificate completed.
There are circumstances in which you can complete a Filing Fee Reduction Form and reduce the filing fee. These include:
- You are the primary cardholder of a health care card, pensioner or other concession card, or Commonwealth seniors’ health card;
- You have been granted Legal Aid; or
- You are receiving youth allowance, Austudy or ABSTUDY payments
Step 3: Serve the Divorce Application (If Sole Application)
If you file a sole application, you must serve a copy of the Application for Divorce on your spouse. This ensures that both parties are aware of the proceedings.
You can serve the divorce application in the following ways:
- By providing a copy to your spouse’s solicitor, if they have one;
- By post, with an envelope that is pre-addressed to your address and the correct postage so your spouse can return the Acknowledgment of Service; or
- By process server, which is useful if you are experiencing issues serving the documents on your spouse.
You should obtain legal advice if you are unable to locate your spouse to serve your Application for Divorce. Once you serve the application, you must file proof of service with the Court by filing an Affidavit of Service. If you engage a process server to serve the documents, they will usually complete the Affidavit of Service themselves. You may also be required to file an Affidavit Proving Signature, if the person who served the Application for Divorce by hand does not know your spouse.
You do not need to complete an Affidavit of Service document if the documents are served upon your spouse’s solicitor. Instead, their solicitor should complete and return an Acknowledgment of Service with their signature.
Step 4: Attend the Divorce Hearing (If Necessary)
Divorce Hearings are usually conducted electronically, meaning you do not need to attend the Court registry in person. You will only need access to a telephone.
You are required to attend the Divorce Hearing if:
- You have filed a sole Application for Divorce, and there is a child of the marriage under the age of 18 years; or
- You have indicated in your Application for Divorce that you wish to attend the Divorce Hearing; or
- Either party has objected to the divorce being heard in the absence of the parties; or
- Your spouse files a Response to Divorce which opposes your sole Application for Divorce.
During the hearing, the Court will review the Application for Divorce, confirm that all requirements have been met and deal with any issues in dispute between you and your spouse. If the Application for Divorce is accepted, the divorce will be granted.
What Happens After the Divorce Is Granted?
Once the divorce is granted, it will be finalised after a period of 1 month and 1 day, unless a special order is made by the Court to reduce this period.
After this period has passed, you will be able to access your Divorce Order on the Commonwealth Courts Portal.
Step 5: Address Property Settlement and Parenting Arrangements
While the divorce process ends the legal marriage, it does not address any financial or parenting issues. These need to be addressed separately.
Property Settlement
If you and your spouse cannot agree on how to divide your assets, you will need to go through a property settlement process. This can be done through negotiation, mediation, or court proceedings.
The Court will consider factors such as:
- The financial and non-financial contributions of each party at the commencement of the relationship, during the relationship and post-separation; and
- The future needs of each party, including whether one party is caring for children of the relationship.
Once your divorce is finalised, there is a time limitation of 12 months from the date of the divorce to commence Court proceedings for property matters. While you can bring an ‘out of time’ application before the Court, you will need the Court’s permission before your matter is considered. You will need to provide a valid reason for the delay, and demonstrate that it would cause hardship for you to not have the matter proceed.
Parenting Arrangements
If children are involved, you will need to make arrangements for their care and living arrangements. You may reach an agreement through negotiation, mediation or Court proceedings, and formalise either through a Parenting Plan or Court Orders. The best interests of the child is the primary consideration in all decisions about parenting arrangements.
Step 6: Seek Legal Advice and Support
Divorce is a major life event that can be emotionally and financially challenging. Seeking expert legal advice early in the process can help you understand your rights and responsibilities. A family lawyer can assist you with everything from filing the divorce application to navigating property settlements and child custody issues.
Additionally, counselling and support services can help you manage the emotional aspects of divorce.
Conclusion
Preparing for your divorce can be challenging, but if you follow these steps, you can move forward with clarity and confidence.
It is essential to seek legal advice to protect your interests and ensure that you navigate the process effectively.
At Conditsis Lawyers Newcastle, our experienced and caring family lawyers understand the emotional and financial impact that separation and divorce can have on you and your family. We will work with you to make the experience as easy, stress-free and equitable as possible. Speak to one of our family law experts today.
