Going through a divorce can be a difficult time for all involved with emotions and stress often running high. Understanding the process of divorce and the required initial steps can be overwhelming.
Our team of experienced divorce lawyers in Perth and Joondalup have an in-depth understanding of the process and challenges involved, and can help guide you through your divorce.
What is the divorce process in Perth?
The Family Law Act 1975 is the relevant legislation that applies to marriages and de facto relationships throughout Australia.
Divorce only deals with the ending of a marriage. Parenting arrangements and property matters are dealt with by the courts separately. Please see Child Custody and Parenting Arrangements and Property Settlement for more information on these areas.
To help you understand the divorce process in Western Australia, we have outlined the main steps.
Step 1 – Separation
The first step to obtaining a divorce is separation. To be eligible to apply for a divorce, couples must have been separated for 12 months.
Separation can occur even if the couple are still in the same house.
Step 2 – Documentation
You will need to provide certain documents for your divorce application as required by the law.
You will need a copy of your marriage certificate. If you were married overseas and the marriage certificate is in another language, you will need to have it translated and have the translator complete an Affidavit.
If your marriage has been less than 2 years, both parties will need to attend counselling to attempt reconciliation. Once this has been completed and it is confirmed the parties will not reconcile, a counselling certificate will be issued. This certificate will need to be submitted with your divorce application.
Separated Under One Roof
If you have been separated but living under the same roof you will be required to submit evidence regarding the change in the marriage. You will need to submit an affidavit from a witness, such as a close friend and/or family member, stating that the marriage has irretrievably broken down and you are living separately under the one roof.
Step 3 – File Your Application for Divorce
The next step is to complete and file your “Application for Divorce”. This is a relatively straight forward document, providing the parties’ details, marriage dates and separation dates and if there are any children under 18 years old and to ensure there are arrangements in place for any children under 18 years old.
You are required to file the Application for Divorce together with relevant documents at the Family Court. There is a filing fee of $865.00 (correct as of Dec 2017). You may be eligible for a reduced fee depending on whether you or your partner are in receipt of government benefits or a health care card.
Step 4 – Once You Have Filed
When you have successfully filed your divorce application, you will receive a Court date. This is known as the “Divorce Hearing” date. This date may be up to 3 months after the filing of your application.
Step 5 – Divorce Hearing
At the divorce hearing the Magistrate determines if your marriage has irretrievably broken down and determines if the parties have been separated for at least 12 months prior to the application for divorce.
Do I have to attend the divorce hearing?
No children under 18
If there are no children from the marriage under 18 years old, you are not required to attend the hearing. The hearing will be heard in Chambers and the divorce will be granted. This applies to both joint and sole divorce applications.
Joint application with children under 18
If you have completed a joint application, you are not required to attend the divorce hearing.
Sole application with children under 18
If one party has made an application and there are children under 18, then both parties are required to attend the divorce hearing.
Step 6 – Divorce Becomes Official
If your divorce is granted at the divorce hearing, it will become official one month and one day after the divorce hearing. You will receive your Divorce Order in the mail from the Family Court approximately 6-8 weeks after your divorce hearing.
Between your divorce hearing and your divorce becoming official, you are not permitted to legally marry another person.
You are free to marry another person after your divorce becomes official.
Are there different types of divorce?
There are two main types of divorce application. There are two main types of divorce application.
One party applies for the divorce and obtains a Court Date. Once the Court Date is set, the divorce application must be personally served on to the other party.
Both parties complete the divorce application and file the document. No service is required on the parties.
It is important when serving the divorce application in sole applications that you meet the service requirements of the Family Law Rules 2004.
- Divorce applications must be personally served on the other party.
- Service of the divorce application must be by a person who is over 18 years old and not connected to either party
- If the other party resides in Australia, then a successful service is to be met within 28 days of the Divorce Hearing date.
- If the other party is overseas then a successful service is to be met within 42 days of the Divorce Hearing date.
- The person who served the divorce application is required to fill out service documents and file them at the Family Court to prove service requirements have been met.
Can I oppose or contest my divorce?
There are two primary ways to oppose a divorce. You can oppose a divorce if:
- the separation date is in dispute and is less than 12-months; or
- the Court does not have jurisdiction.
Outside of this, there are limited circumstances in which you can challenge a divorce application.
To oppose a divorce, you will need to complete a Response to Divorce within 28 days of the application being served on you. You will also need to attend the divorce hearing. If you do not attend the hearing, the Court may decide to grant the divorce in your absence.
Are there time limitations ?
For married couples the time limitation to finalise property proceedings is within 12 months of the date of the Divorce Order becoming final. If property settlement has not taken place by that time (or proceedings commenced at the Family Court) then you will need to seek the leave of the Court to make an application out of time.
For de facto couples the time limitation is 2 years from the date of separation. Once again, if property settlement has not taken place within that time (or proceedings commenced), you will need to seek the leave of the Court to file an application.