What exactly is a decree of divorce, and how does it affect you? In Australia, a decree of divorce is the legal order that officially ends a marriage.
It is granted by the Federal Circuit and Family Court of Australia after the court is satisfied that the marriage has irretrievably broken down.
Once this order is finalised, both parties are legally recognised as divorced and free to remarry if they choose.
Divorce in Australia follows a no-fault principle, meaning the court does not consider the reasons for the marriage breakdown.
Instead, the only requirement is that the couple has been separated for at least 12 months and that there is no reasonable chance of reconciliation.
Below, we answer the most common questions about the decree of divorce and what you should expect throughout the process.
What Is a Decree of Divorce in Australia?
A decree of divorce is the official court order that legally dissolves a marriage. In Australia, this order is referred to as a divorce order, which is issued electronically.
The court does not physically issue a paper document; instead, the divorce order is available for download through the Commonwealth Courts Portal.
Before a decree of divorce is granted, the applicant (or both parties if applying jointly) must meet certain legal requirements:
- The marriage must have broken down irretrievably.
- The couple must have been separated for at least 12 months.
- If married for less than two years, they must attend counselling or provide a statement explaining why counselling is not possible.
- At least one party must be an Australian citizen, a permanent resident, or have lived in Australia for at least 12 months.
If the court is satisfied with the application and all legal requirements are met, it will issue a divorce order, which becomes final one month and one day after the hearing.
How Long Does It Take to Get a Divorce Order?
The process of obtaining a decree of divorce typically takes four to six months, depending on how quickly documents are filed and whether there are any complications. The timeline generally follows these steps:
- Preparation of Application: The divorce application is completed online and signed before a lawyer or Justice of the Peace.
- Filing with the Court: The application is submitted through the Commonwealth Courts Portal. A fee is payable, though financial hardship exemptions may apply.
- Service of Documents (if applying alone): If filing a sole application, the other party must be formally served with the divorce papers at least 28 days before the hearing (42 days if they are overseas).
- Court Hearing (if required): If children under 18 are involved, one or both parties may need to attend the hearing.
- Granting of Divorce Order: If all legal conditions are met, the court grants the divorce, and the order becomes final one month and one day later.
While a divorce order legally ends a marriage, it does not resolve financial matters or parenting arrangements. These must be dealt with separately through property settlements and parenting plans.
Also Read: How to Start Divorce Proceedings: Your Complete Guide
Do You Need to Attend Court for Your Divorce?
Not all divorces require a court appearance. Whether you need to attend depends on your circumstances:
- Joint Application: If both parties apply together and there are no children under 18, no court attendance is required.
- Sole Application Without Children Under 18: No court attendance is required.
- Sole Application With Children Under 18: The applicant must attend the hearing to confirm that proper arrangements for the children’s welfare have been made.
- Disputed Divorce Applications: If one party contests the divorce, a court hearing may be necessary to determine whether legal requirements are met.
Most divorce hearings are straightforward and conducted online or via telephone. The judge reviews the application and, if everything is in order, grants the divorce.
What Happens After a Decree of Divorce Is Granted?
Once the court grants the divorce order, there is a one-month-and-one-day waiting period before it becomes final. After this period, the marriage is officially dissolved.
Key points to remember after your decree of divorce is granted:
- Your marital status changes: You are legally recognised as divorced and can remarry if desired.
- It does not affect financial or parenting arrangements: The divorce order does not settle property division, child custody, or spousal maintenance. These issues must be resolved separately, either through agreements or court orders.
- You have 12 months to seek property settlements: If you wish to apply for financial settlements, you must do so within 12 months of the divorce order becoming final.
- Superannuation and estate planning should be updated: After divorce, it is crucial to update your will, power of attorney, and superannuation beneficiaries.
A divorce is just the legal end of a marriage. Many aspects, such as property division and child arrangements, may still require legal assistance.
Can Your Ex-Partner Challenge the Divorce Order?
In Australia, the divorce process is relatively straightforward, but there are limited circumstances in which an ex-partner may challenge the application:
- They dispute the date of separation: If the 12-month separation requirement is not met, they can argue that the marriage has not irretrievably broken down.
- They were not properly served: In sole applications, the respondent must be given appropriate notice. If service was not carried out correctly, they can dispute the process.
- Fraud or procedural errors: If false information was provided or there was a serious procedural mistake, they may apply to have the order set aside.
Challenging a divorce is uncommon, as Australian law follows a no-fault principle. If the legal requirements are satisfied, the court will generally grant the divorce regardless of one party’s objections.
Need Assistance with Your Divorce or Family Law Matters?
Divorce can be an emotional and complex process, but understanding how a decree of divorce works in Australia can help you prepare for what lies ahead.
While the divorce itself is relatively straightforward, matters such as property division, child custody, and financial settlements often require further legal guidance.
Our team at Ipswich Family Lawyers is here to help. Our experienced divorce lawyers provide clear, compassionate, and effective legal solutions tailored to your needs.
Contact us today for a confidential consultation and let us help you move forward with confidence.
