Going through divorce is the most draining experience of life. And legal requirements like paperwork, discussions, and approvals make it even more complex.
Given the situation, questions and confusions of your mind are understandable. But don’t stress out. We will explain the whole process step-by-step to ease some of your tension.
We, at Hoe Lawyers, aim to protect your interests and make the process as smooth as possible. Our experienced divorce lawyers in Perth can help you with professional expertise and empathetic services.
Requirements to Get a Divorce in Western Australia
In Western Australia, The Federal Circuit and Family Court deals with divorce or dissolution of marriage under Part VI of the Family Law Act 1975.
This law also operated the principle of no-fault divorce. Which means you can apply for a divorce without accusing or blaming your partner. Australian law focuses on “has it really ended” instead of wasting time on “why it happened”.
The only conditions you have to fulfil before you can apply for a divorce are:
- Legal Marriage
First of all, your marriage must be legally recognised in Australia. As the court cannot dissolve a marriage that has no legal proof. Even if your marriage is recognised in some other country. It will not be acceptable if it doesn’t fall in Australian marriage criteria.
- Separation
You and your spouse must be separated before 12 months of filing a divorce. This separation period marks from the date when the partners started living apart. Or they can be under one roof, but no longer function as a couple.
- 2 Years of Marriage
If you are applying within two years of marriage. You will face additional document requirements. You need to show a reconciliation certificate by a specified counsellor.
Two years is calculated from the marriage legalisation to the date of applying for divorce. It includes 1 year of separation.
- Residency
Any one of the two partners must be an Australian citizen to file a divorce. He must be living in Australia for at least 12 months. Or have the permanent citizenship by descent or grant.
If you can fulfil these requirements. You are legally qualified to apply for divorce.
Steps to File a Divorce Application
We have simplified the steps involved to get a divorce in Western Australia.
1. Prepare Your Documents
Before starting your divorce application. Gather the documents required for the process. These documents include:
- Your marriage certificate (copy).
- Registration of your marriage via Births, Deaths & Marriages (or an equivalent if you married outside WA).
- Proof of separation (if you are living under one roof).
- If your marriage certificate is not in English. You will need to provide the translation of certificate. And also attach an affidavit of translation of marriage certificate from the translator.
- If you are living under one roof. You will need affidavits of both partners and an independent person as proof.
- Citizenship and residency proof.
- Relevant documents related to children, property, or financial arrangements (if applicable).
Make sure that all these documents are accurate and up to date. And then proceed to the next step.
2. Complete the Application
You need to apply for divorce to Family Court of Western Australia. Its website contains the forms and application kits needed for the process.
Both the partners can apply together via joint application. Or the single one can also apply via sole application. Type of application and complexity of your case will decide who will have to appear at the hearings.
How to eLodge your divorce application?
You can also apply online through the Commonwealth Courts Portal. It has the eform to apply for divorce. So, you can efile your case and access court orders 24/7 on a secure platform.
If the whole process is difficult for you to digest. You can take the help of a qualified lawyer. Our professional team at Hoe Lawyers can facilitate you along the process. And file the application on your behalf to save you from legal complexities.
3. Print and Sign Your Application Before an Authorised Witness
Once you’ve completed your divorce application. You will have to print it out and make 2-3 copies. Bring it along with an Affidavit, and sign in front of an authorised witness.
This witness can be a lawyer, justice of the peace, or notary public. Other parties like police officers, relatives or govt employers are not counted. And if you don’t have an authorised witness, unnecessary delays can be caused. So, be careful in this step.
4. Finalise Your Application
After signing the affidavit, submit your divorce application to the court. Check the required fee amount before submission.
If you want to eLodge your divorce application, you will have to pay the court filing fee online. A visa or master credit card will be required for it. So, make sure you have access to it.
Even if you have filed the application by yourself. It is recommended to seek professional legal assistance. To make sure your application is accurate and complete.
The court then review your application and check your information and the legality of your documents.
5. Service of the Application
If the divorce application is being filed solely by you (without your spouse). i.e. sole application. You must “serve” (deliver) the documents to your spouse. The documents will include a copy of the application and related court testimonies.
Service makes your spouse aware of the divorce proceedings. You can serve the documents by post, in person, or through a third party. That serving person will also need to complete an Affidavit of Service.
If you cannot locate your spouse. You can apply to the court for a substitute service or dispensation of service. (Under article 136 of Family Court Rules 2021). Also keep in mind that application must be accepted by the Court to serve it.
6. Select the Hearing Date
After filing and serving the application, you will have to choose a date of first hearing. In case of sole application, choose it by considering your partner’s location.
- If your partner is in Australia, hearing should be at least 28 days after service.
- If your spouse is overseas, hearing should be at least 42 days after service.
If your partner does not respond to application or attend the hearing. Court will require additional evidence regarding service of application. You will need to provid an affidavit swearing that:
- You showed a photo of your spouse to server. (via Affidavit of Proof of Identity)
- You have identified your spouse’s signature on acknowledgment of service. (via Affidavit of Proof of Signature).
Don’t rush the hearing date before completing the legal requirements. So, you can prevent the further complexities.
Timeframes for Divorce Order
Another common question we receive is: “When does the divorce become final?”
Just like other family law matters. It is difficult to provide a precise timeframe for the divorce grant. It usually happens after submission of all required documents.
Court procedure will be entirely different depending that your application was sole or joint. It also depends on your spouse’s cooperation and ages of children. (if you have any).
Once the court grants your divorce order. The divorce becomes final after one month and one day of that hearing. After that, you are legally divorced and free to remarry if you want.
However, property and financial matters and childcare arrangements are still need to resolve. They can take additional time depending on the complexity of situation.
Children and Property Arrangements After Divorce Order
Divorce order doesn’t contain children or property arrangements. So, they will have to be sorted separately.
If your children are under 18 years, divorce will not be granted without settling their parenting issues.
Both partners are required to sit together and decide:
- Parental responsibility (who will make the decisions of child’s life before age 18).
- Parental time (Who will live and spend time with child).
Parents sit together to make both these decisions. If they fail to come to a mutual agreement. A specialist family mediation services will make the final decision. This decision is made according to the best interest of children.
Remember that no rule in Australian law requires 50-50 time with both parents now. Although, both parents are bound to provide the financial support. Regardless of who is living with the child.
Property Orders
You are required to apply for property orders before the divorce gets granted. Or within after 12 months of it. Take the help of relevant authorities before applying for it.
Learn More About Time Limits for Family Law in Western Australia
Conclusion
Getting a divorce in Western Australia involves a lengthy and complex process. A lot of legalities are need to be fulfilled from preparing an application to serving it. Each stage requires careful attention to detail and prior arrangements. Dealing with additional concerns like children and property is also important and critical.
Need Help? Contact Hoe Lawyers
Are you unsure about how to proceed with your divorce application?
Our expert team at Hoe Lawyers is here to help you with every step of the way. With over a decade of experience in handling family law matters. We offer compassionate, clear, and professional advice to guide you through this difficult time.
Let us handle the legal complexities, so you can easily move forward in your life.
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Frequently Asked Questions
- How long does it take to get a divorce in Australia?
Exact time period to get a divorce order is diffult to predicy. As it varies according to the cooperation of your spouse, ages of children and financial assets. If no complications are involved, process may take 3-4 months.
- Do I need to attend the divorce hearing?
If you and your partner lodged a joint application. you don’t need to attend the hearing. But in case of sole application, you will need to attend hearing if:
You have children under 18 years of age
Your ex-partner filed an objection to the divorce
- Does divorce have to be mutual?
According to family law in Australia, divorce does not have to be mutual. If any of the one party decide to get divorced, court will accept the application. But a 12-month separation time must be completed to make sure that relationship is irreversibly broken.
- What is custody?
Custody, also called parental responsibility, includes the legal rights and responsibilities of parents about their children. It is decided by mutual agreement of both parents. If they can’t decide, specialist family mediation services intervene.
- What is a divorce financial agreement?
A divorce financial agreement is a legal document formed along or after divorce process. It states the division of couple’s assets and financial resources after separation. Other names for it are “prenup” and “binding financial agreement” (BFA).