The 1st Consideration When Getting a Divorce in Australia if Married Overseas
To know if any of the below information is relevant to you, the very first step is to determine if you are eligible to apply for a divorce in Australia.
If you were married overseas, you can apply for a divorce if you or your spouse are a citizen of Australia, and have been living in Australia for 12 months prior to filing your divorce application.
The 2nd Consideration When Getting a Divorce in Australia if Married Overseas
The next step is to ascertain whether your marriage overseas is recognised in Australia. If your marriage is not recognised in Australia then there will be no need to apply for a divorce.
In the country you were married, you will have been issued a marriage certificate. If that marriage certificate is written in a different language to file for divorce in Australia, that certificate needs to be translated into English and the copy be verified as a legitimate and legally recognised document.
The marriage certificate is then submitted to support your Application for Divorce.
The 3rd Consideration In Getting a Divorce in Australia if Married Overseas
In Australia, you cannot apply for a divorce until 12 months and one day after your date of separation.
That 12-month waiting period however does not apply to other elements relating to a marriage or relationship breakdown. If you have children, from the date of separation you are able to make plans and take steps to determine how you will share the care of your children. You are also able to begin the process of determining how you will separate your finances and assets.
Both of these processes can begin and be finalised at any point in time from the date of your separation.
The 4th Consideration In Getting a Divorce in Australia if Married Overseas
If you have been married for less than 2 years, it is a requirement in Australia for you both to have attended marriage counselling before you can submit an Application for Divorce.
The counselling needs to be from a service provider who can issue you with a counselling certificate. That certificate is then submitted as part of your support documentation in your divorce application.
The 5th Consideration In Getting a Divorce in Australia if Married Overseas
A divorce application can be filed in one of two ways. As either a:
- A Sole Application for Divorce; or
- A Joint Application for Divorce.
If you intend to file a Sole Application for Divorce, then you will need to ‘serve’ that application to your former spouse. Essentially this is the process of notifying them that there is to be a divorce hearing.
If they are living overseas you must serve them this notification of intent to apply for divorce, no less than 42 days before your hearing before the Court.
If they are living in Australia, then you must ensure they are served notification that you have filed for the Application of Divorce no less than 28 days before the divorce hearing date.
When we help our clients complete the application for divorce and serve the notice, the final step is to file supporting documents to show the Court that you have served those documents. Those documents are usually either an:
- Acknowledgement of Service; or an
- Affidavit of Service.
This is to satisfy the Court that you have served the other party within the required timeframe.
When the Location of a Former Spouse Is Unknown
We have had much experience with clients whose former spouse’s location is unknown. In those circumstances, the Court wants to see that you have made reasonable attempts to serve them notice of your application and the hearing date.
If unsuccessful in serving them then it might be suitable for us to file an application to the Court for a substituted service. That is, when someone close to them, such as a family member or friend, can be served instead, bringing your application for divorce to their attention.
Otherwise, if you have made all reasonable attempts to serve them and if that substituted service is not a possibility, then we can apply to the Court to have the requirements of service set aside.
All of these steps need to have been completed before a divorce hearing can proceed.
The Hearing
At your Court hearing, your Application for Divorce is considered and if the Court is satisfied that all evidence and paperwork submitted is correct and sufficient, then a Divorce Order will be granted. This is published 1 month and 1 day from your hearing date.
Once your Divorce Order has been finalised, a new time limitation is activated. From that date, you and your former spouse have a maximum of 12 months to finalise the division of your finances and assets, collectively referred to in family law as a Property Settlement.
Avoid Additional Expenses and Time Blowouts
While many people elect to file an Application for a Divorce without legal assistance, there can be some consequences to be aware of.
It is not uncommon for people to seek our advice and assistance because their initial application has been rejected. This is typically because sufficient detail has not been provided. The consequence is that the application then needs a supporting Affidavit, providing sufficient detail and documentation (if needed), which takes additional time and legal fees.
When people seek legal advice to rectify the issues, the cost is typically more than if they had sought legal advice from the start. As family lawyers, we know that it takes more time to fix a rejected application than it is to prepare one from scratch.
An experienced family lawyer will help you compile all of the information required and will be familiar with the typical obstacles in this process. They can also help manage the process of serving your former spouse both here in Australia and overseas.
Related Information
Additional International Family Law Resources, Separation & Divorce Resources Information
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