Divorce & Separation
Divorce Lawyers Melbourne
Divorce is the process of finalising a marriage and is quite separate from sorting out future parenting arrangements and dividing up property.
We give strategic advice and representation, drawing upon our extensive experience and knowledge. We provide pragmatic solutions and personalised service and care.
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How do I Get a Divorce?
Divorce is a different process from making arrangements about you children, dividing your property or sorting out maintenance or child support.
Before you can apply for a divorce you must be separated for 12 months. If you were separated under one roof for part or all of the period then you need extra evidence to support your application.
In most cases an application for divorce is quite straightforward. If a joint application for divorce is made there is no need to have the application personally served upon the other party.
Hidden First Field
If you make a sole application you can’t serve the application on the other party yourself.
We encourage our clients to apply for their own divorces as for most people the most straightforward part of dealing with a separation.
You may need assistance from us if you were married in a non-English speaking country, the other party is overseas or difficult to contact or you were separated under the one roof for part of the separation period.
If your marriage was less than two years in duration there is a requirement that you and your spouse attend marriage counselling prior to filing for a divorce. In limited circumstances the court may grant permission for you to file you divorce application without attending counselling.
We encourage you to seek advice as to the time at which you should apply for a divorce. In many cases you should not file for divorce immediately after the 12 month period has expired as once your divorce is finalised there is a time limit on settling in property matters and applying the spousal maintenance. We recommend that in most cases you do not apply for a divorce until your property and/or spousal maintenance matters have been finalised or court proceedings have commenced.
In most cases an application for divorce will be listed for hearing within 2 to 3 months after the divorce application is filed. There is a fee for the filing of the divorce or you may be eligible for a reduction in the fee.
You don’t need to go to court unless you have made a sole application and there is a child of the marriage aged under 18 years at the time the application was filed, the other party files a response opposing your application and certain other limited circumstances.
A divorce order is effective one month after the order is made.
Hidden First Field
For some of our clients, separation and divorce have religious implications.
A Jewish gett, a Sharia talaq and a Catholic annulment are of no effect in Australian civil law. A divorce under the Family Law Act will also be necessary.
Under Jewish law, a civil divorce is not recognised without a gett. A gett is generally drawn up by a Beth Din (Rabbinical council). A marriage is dissolved by the husband granting a gett voluntarily and the wife voluntarily receiving it. Without this, the religious divorce is not recognised.
The Family Court or Federal Circuit Court may try to phrase the orders to assist a wife to obtain a gett from a husband who may otherwise be reluctant to give it.
The aim of Islamic law is to establish a healthy family unit through marriage. However, if this fails then divorce is permitted. The husband must pronounce ‘talaq’ for the divorce to be effected. The general principle is that when the husband pronounces ‘talaq’ three times divorce is effected. A wife who seeks a divorce will usually need the consent of her husband.
If a wife has a genuine objection she may also obtain a divorce without the husband’s consent. Reasons to ask for a divorce include a wife’s disliking of a husband’s treatment of her or him having failed to meet his responsibilities of the marriage. Divorce can be requested by a wife and is granted by a husband upon the wife paying a husband a sum of money. The amount is limited to the amount provided by a husband as a gift to a wife during the marriage.
An annulment, or decree of nullity, is an official declaration made by the church. It declares that some of the necessary elements of a marriage were missing at the time of the wedding. A decree of nullity declares the marriage as recognised by the Catholic Church did not exist as it was invalid. The Catholic Church requires that a divorce under the Family Law Act is obtained before a marriage is annulled.
If you have a Will, we recommend that you make a new Will reflecting the fact that you have separated. Your current Will remains valid unless you sign a document revoking it. If you do not have a Will, we recommend that you obtain one immediately. The law of intestacy mean that if you were to die without a Will, your spouse is entitled to a share of your assets.
If you divorce, any provisions relating to your spouse become invalid. In some circumstances you may not want this to occur. You need to ask your wills & estates lawyer to draft a will in terms which ensure it is still valid.
If you remarry, your will automatically becomes invalid – unless your will is made in contemplation of marriage.
Dividing Property & Assets
The property to be divided includes your home, superannuation and liabilities. Interests in businesses, family trust and overseas property are also considered.
You can sort out how property is to be divided without first applying for a divorce if you are married.
Related: Property Settlements – The Law
Frequently Asked Questions
Hidden First Field
Do I need a lawyer to get a divorce?
You don’t need to get a lawyer for a divorce and at Forte Family Lawyers we encourage you to apply for your own divorce as this is one way that they can save on legal costs. We can, of course, help you will things you are not sure about.
We often act for parties obtaining a divorce where the circumstances are more complex such as having a marriage certificate in a language other than English, not being able to prove their marriage because the records have been destroyed, they were separated under the one roof for part of the 12 month period or they can’t locate the other party.
How long is the typical divorce process?
The typical divorce process is 3 to 4 months. From the time of filing the divorce application a hearing date will be set which is typically within 2 to 3 months. The court allows sufficient time for the application to be served before the hearing date.
If the other party is (called the respondent) is In Australia the documents must be served at least 28 days before the court hearing and if the respondent is overseas the documents must be served at least 42 days before the court hearing. In some circumstances these times can be shortened but you need a good reason.
A divorce order takes effect one month after it is made although the court can shorten this time.
What costs can I expect to incur with getting a divorce?
Assuming you apply for your own divorce and therefore don’t incur any legal costs, the main cost you can expect to incur are the filing fee. If it is a sole application rather than a joint application, you will normally pay for a process server to serve the documents on the other party which is usually in the vicinity of $100-$200.
The court fee as at 1 September 2021 is $940 or you may be eligible for a reduced fee of $310.
Do you handle intervention / restraining orders?
Yes we do. There are two types. An Intervention Order or Family Violence Order is obtained in the Magistrates’ Court. The police may apply for one a Safety Notice or Interim Intervention Order or Final Intervention Order on your behalf, but you may need a lawyer to help negotiate the terms of the intervention order or re-negotiate parenting arrangements.
If you have been served with a Safety Notice or an Interim Intervention Order we can help you to oppose it and to negotiate the terms of the Interim Intervention Order and any Family Law Act order so you can continue to see your children.
Restraining orders can be made in the FCFCOA to prevent parties from, for example, selling property until the court makes an order or you both agree that this occur. Restraining orders can be used to protect your property until there is agreement or court order and also to protect children by requiring the parents to behave in ways which advance their best interests, such as not denigrating the other parent when the children can hear.