Attwood Marshall Lawyers Family Lawyer, Emily Edmonds, discusses the steps to take, and what you need to know, when applying for a divorce in Australia.
The history of divorce
In 1857, the English Divorce Act was introduced in Australia. The Act favoured men over women, giving men the option to file for divorce if a wife had committed a single act of adultery. Women could only file for divorce if their husband’s adultery was combined with an additional offence, that being an act of cruelty, desertion, bigamy, or similar.
It was not until 1975 that ‘no-fault’ divorce was introduced in Australia by way of the Family Law Act. The new legislation meant that couples only needed to prove that their marriage had broken down irretrievably. It did not matter who was “at fault” for that breakdown.
After the introduction of the Family Law Act 1975, the rate of divorce increased dramatically. In the years leading up to the Family Law Act being enacted, the crude divorce rate was 1 divorce per 1000 residents. After 1975, the crude divorce rate increased to 4.6 divorces per 1000 residents in the first year.
Marriage and divorce statistics
- In 2019, there were 113,815 marriages in Australia
- That same year there were 49,116 divorces granted in Australia.
- This represented a crude divorce rate of 1.9 divorces per 1,000 estimated resident population.
For those marriages that end in divorce, the median age at marriage, separation and divorce has increased over time.
The median age at divorce is currently:
- For males, the average age for getting divorced is 45.9 years (compared to 40.9 years in 1999); and
- For females, the average age for getting divorced is 43.1 years (compared to 38.2 in 1999).
The median duration of marriage to:
- separation was 8.5 years in 2019 compared to 7.9 years in 1999; and
- divorce was 12.2 years in 2019 compared to 11.3 years in 1999.
Children of divorce statics:
- In 2016, 40,202 children were involved in divorces (a decrease from 48,396 children in 2006);
- There is a steady decline each year in the number of children involved in divorces.
- In 1975, 67.6% of all divorces involved children, compared to 46% in 2016.
Applying for Divorce
The common misconception many people have is that divorce covers everything from dissolving the marriage, to agreeing on a plan for the children and settling property matters, however this is not the case. A property settlement and parenting arrangements, as well as financial matters such as child support or spousal maintenance, are all separate processes to divorce. Divorce simply means that the parties will no longer be legally married. It is a formal, legal end to their union.
You need to have been separated for at least 12 months before applying for divorce. If you have not been separated for that period, you cannot file an Application for Divorce.
In some cases people have been separated for 12 months but have still been living separately and apart under the one roof during this time. In these circumstances, you can still make an Application for Divorce, however there are additional steps that you will need to take to prove to the Court that you have been separated for the required timeframe.
Once you have met the separation time requirement, you then need to compile the necessary information including details of both parties, details of the relationship, and details of the children, if relevant.
Is the decision mutual? Sole vs joint applications
An Application for Divorce can be made solely or jointly. If both parties are willing to sign the Application and undertake the process together, this is the most efficient and timely option.
If a joint Application is not possible as one party will not agree to the divorce, then an Application can still be made by the person seeking the divorce. This would be a sole Application. If you are making a sole Application for Divorce, once you have filed the documents with the Court, you then need to arrange for the documents to be served on the other party. You cannot serve the Application for Divorce personally on your spouse, but options to serve by post or using a third party are available.
What a Court considers in divorce applications
The Court will need to be satisfied that you are eligible to apply for a divorce in Australia. You or your estranged spouse need to:
- have been born in Australia; or
- be an Australian citizen; or
- have been living in Australia for the last 12 months and intend to continue doing so.
The Court will then need to be satisfied that at least one party to the relationship believes that the marriage has broken down and there is no likelihood of reconciliation.
If you have been married for less than two years at the time of filing the Application for Divorce, in addition to meeting the above requirements, you will also need to file a counselling certificate with your Application for Divorce.
A counselling certificate is completed after attending a counselling session with a family counsellor, an individual or organisation nominated as a family consultant, or a person nominated by an office of the court. This certificate will help satisfy the Court that prior to granting a divorce, the parties have considered the possibility of reconciliation, all avenues have been explored and there is no possibility of the parties reconciling their relationship.
How long does a divorce take to be finalised?
From the date of filing the application for divorce, it generally takes about 4 months for a divorce order to become final. Keeping in mind this is after you have already been separated for a minimum of 12-months.
Can a divorce be fast-tracked?
For many people, they want to put this stressful time behind them as soon as possible. Unfortunately, there is no way to fast track a divorce. If you have children, it is important to keep in mind that they take time to adjust to the sudden change in your family circumstances. As much as you may be ready to move forward and start a new life, children may need you to slow down and help them navigate this change in their lives.
Attitude towards applying for divorce
There tends to be a higher divorce rate for couples on their 2nd, 3rd or 4th marriage. While only 30% of first-time marriages end in divorce, up to 60% of second marriages end in divorce.
People tend to tolerate a lot less in second marriages. This may be due to having a sense that they “survived” divorce once, therefore they can do it again.
It could also be that the “cement” holding the 2nd, 3rd or 4th marriage together is not as strong, as marriage, historically, was intended for raising offspring. Since most subsequent marriages do not produce children and come later in life, there is no common glue binding the parties together once their mutual affection begins to fade. The concept of “working things out for the children’s sake” is no longer a factor.
The impact divorce has on your estate plan
Will and Enduring Power of Attorney
How a divorce affects your estate plan and your Will depends on which State or Territory you reside in. In some states, divorce will automatically render your Will invalid, and/or revoke parts of it.
We strongly recommend that you update your Will and any Enduring Power of Attorney as soon as possible after separating from a spouse, particularly when you consider the time that can lapse between separation and obtaining a formal divorce order. The period of separation that occurs prior to the divorce order and after the separation is one of the most important times to make sure your Will and Enduring Power of Attorney reflects your change in circumstances.
Separation and applying for divorce can be such stressful and emotional events, that many people forget to consider their estate planning documents. If you forget to update these documents, you run the risk of your estranged spouse potentially inheriting from you under an outdated Will, or being appointed under a Power of Attorney document to make decisions on your behalf in the event you lose capacity.
Property owned as joint tenants
The other important, and often overlooked issue, is property you own as ‘joint tenants’ with your spouse or partner. If you die, your notional half share of the property passes to your surviving joint tenant, without reference to your Will. It is therefore very important that you sever the tenancies on any jointly owned property and update your Will.
Superannuation and death cover insurance policies
It is also very important that you review your insurance policies and superannuation. Quite often, you have appointed your spouse or partner as the beneficiary in these policies supported by a ‘binding death nomination’. This means that any death benefit will be paid to your spouse or partner upon death without reference to your Will.
How can Attwood Marshall Lawyers help?
We understand that going through separation and divorce is an emotionally charged time in your life. We believe in helping you settle family matters in a way that reduces conflict and allows all parties to move forward peacefully.
Our experienced family lawyers can assist with financial agreements, property settlements, parenting disputes and divorce applications.
With Attwood Marshall Lawyers dedicated Family Law team behind you, your matter will be dealt with promptly and efficiently so that your best interests are protected, and your family can navigate this difficult time with clarity and confidence.
