When you say ‘I do’, you never assume you’ll be thinking about how to initiate divorce proceedings anytime soon.
You usually hope that your marriage will last forever, till death do you part.
Unfortunately, many times this is not the case. The rate of divorce cases in Australia remains quite high, with an astounding 33% of marriages expected to end in divorce. In 2019 alone, there were 49,116 divorces in Australia.
More than simply ending a relationship, a divorce can signify a brutal end to an important aspect of your life. As such, the divorce process must be handled with utmost care and sensitivity.
And after making the difficult decision to divorce your spouse, you could be confused by the actual divorce procedure. There are already so many important things to focus on as you end your marriage. You have to think of custody and child support, and also dividing your marital property, amongst other priorities.
The last thing you need at this time is to stress out about the divorce process even before you lay eyes on those divorce forms.
The best way to go at this point is to contact an experienced Newcastle divorce lawyer. At Clarity Lawyers, we know how difficult going through a divorce can be. We understand the delicateness of the situation. You can rely on us to handle your divorce with the utmost care while also protecting your best interests.
How Do I Start the Divorce Process?
Identify the Grounds for Divorce
The first step in this otherwise daunting journey is to identify the grounds of divorce. Why are you requesting a divorce? This is important because the divorce procedure can become a ruthless legal battle over joint assets, retirement benefits, properties, child custody, amongst others.
In Australia, the only legally recognised ground for divorce is proving that the marriage has irretrievably broken down. This means that the chances that you’ll get back together are reasonably very slim or nonexistent.
You must prove this by showing that you and your spouse have been separated for at least 12 months.
The Family Law Act established this ‘No fault’ principle in 1975. This simply means that the Court does not recognise the fault of either spouse as cause for divorce. Only that the marriage had broken down irretrievably with no likelihood of reconciliation.
Apply for Divorce
The next step is to draft a Divorce Agreement. This is a document that clearly states the terms of your separation. Otherwise known as the divorce petition, it is a formal request for divorce.
This document is very critical to the divorce process. A poorly drafted document could put your rights and properties at risk. Therefore, it’s important to involve an experienced divorce lawyer in the drafting.
And if your spouse presents the draft first, do not sign until your own family lawyer has gone through it. Make no assumptions, they can prove quite fatal in the long run.
The application for divorce should be at a court of competent jurisdiction. In Newcastle, that is the Federal Circuit Court of Australia. This is the Court with jurisdiction or power to dissolve marriages (i.e. officiate a divorce) under Part VI of the Family Law Act 1975.
Get Ready for Trial
After filing the divorce papers, you will have to wait for a certain period according to NSW state law. During this time, your family lawyer can gather all the appropriate documentation your case will need.
Such documents may include a proposed parenting plan, financial records, and proof of assets, plus any outstanding debts.
The procedure of getting divorced is mostly administrative and involves filing the required paperwork in Court.
If the Court approves the application for divorce, it issues a divorce order at the court hearing. And when the Court pronounces the Decree Absolute, the marriage becomes officially and legally terminated. However, the divorce order does not take effect immediately, but exactly one month and one day afterwards.
Many people have wondered, ‘do both partners have to sign the divorce papers?’. Both parties can sign the divorce papers if they both agree to the terms of the divorce settlement. This is what is popularly referred to as an uncontested divorce.
However, in some cases, one party may oppose the divorce or to the terms of the agreement.
How Long Does a Divorce Take If One Party Doesn’t Agree?
Your spouse does not have to agree to the divorce for you to begin the divorce process. However, the application process would differ depending on whether your spouse chooses to cooperate with you in the application or not.
It would also differ depending on whether or not you can locate your spouse when making the application.
If your spouse is cooperative, you both can file a joint application for divorce. But if your spouse is opposed to the divorce or AWOL, you can file a sole application by yourself.
Sole Divorce Application
This is a more complicated form of applying for a divorce. It only becomes necessary when the spouse does not want to get divorced or cannot be located. According to Australian law, the application may be completed online, and documents served to the spouse at least 28 days before the hearing date.
After receiving the documents, the other party can read and sign the documents.
However, if the spouse’s location is unknown, the various attempts made to locate them should be recorded in the affidavit. This could include:
- Last known address
- Place of employment
- Newspaper adverts
- Family and friends
When all these have failed, you can apply for substituted service. This is where the documents are given to someone else who can pass them to your missing spouse.
With Sole Divorce Application, the parties are not required to appear in court unless they have children who are under the age of 18 years old.
It may also be necessary for the parties to appear in Court when one party opposes the divorce.
Joint Application for Divorce
This is a much simpler divorce procedure. One spouse completes the joint application for divorce and gives a copy to the other spouse to review and sign. This divorce process does not require one party to serve documents on the other.
The parties also do not need to appear in Court. The Court will likely grant the divorce two months after the filing date as long as the parties provide all the necessary information in the joint application for divorce.
Can I Write My Own Divorce Agreement?
The party initiating the divorce may write the divorce agreement themselves. This is as long as there are no disputes of property sharing, retirement plan, child support, etc. However, the possibility of error is still very high, so it’s not advisable to write your own divorce agreement.
To err on the side of caution, consult with an experienced divorce lawyer to guide you through the complicated process of terminating a marriage.
Contact a Newcastle Divorce Lawyer
Getting a divorce is much more than a mere decision to separate. The emotional strain alone can be tasking enough to bear. Adding that to the intricate legal details of the divorce process is certainly not a burden anyone should carry alone.
Even worse, there is also the risk of losing out at the end of the day. Your social, financial, and legal status can be negatively affected in terms of tax, entitlement to benefits, and your will.
At Clarity Lawyers, we understand what is at stake. With an exceptional team of brilliant lawyers, we deliver first-rate legal services to every client.
For expert advice on the divorce procedure as well as optimal legal assistance to get the best results, contact us today.