Frequently Asked Questions
Q: When can I get a divorce?
A: The only requirement for obtaining a divorce in Australia is to establish that the marriage has broken down irretrievably. This is evidenced by a period of separation of not less than 12 months. If you have been married for two years or less, there is an additional requirement for counselling to have occurred before applying for the divorce. If children are involved, the Court will not grant a divorce unless proper arrangements have been made for their care. Find out more in our Checklist on Divorce.
Q: How much will a divorce cost?
A: Currently, the Federal Circuit Court charges a fee of $845.00 to file an Application for Divorce. If you wish your solicitor to draw up this document or attend Court, this will be an additional expense. As at February 2016, we charge $2,279.50 for a divorce with children under 18 years of age and $1,872.50 for a divorce without children under 18 years of age for undertaking all work necessary for obtaining a divorce. These amounts are fixed fees and are inclusive of professional costs, all disbursements, including filing fees and GST. However, you should note that additional costs will be applicable where the divorce application involves difficulties locating and/or serving the documents on the respondent spouse or where you and your spouse are, or have been (in the past 12 months), separated under the same roof.
Q: Can I change my child’s name?
A: Changing the name of a child under 18 years of age requires the consent of both parents or an order of the Family Court of Australia. If the child is over 12 years, generally their consent is also required. If both parents do not consent to their child’s change of name, a parent can apply to the Family Court for this consent.
Q. How much will a property settlement or parenting order cost?
A: It is very hard to give an accurate estimate of costs, as this will depend on how willing parties are to settle, how complicated the matter is and other unexpected factors which may cut a matter short or draw it out. If fully litigated, your legal costs could be in excess of $50,000.00. Click here to find out more about costs.
Q: How long will proceedings take?
A: Again each case will be different. Only around 5% of cases proceed to a trial in the Family Court. A case which goes to trial may take around 2 years from the date of filing the original application to finalisation; however, most cases are able to be settled sooner out of Court through counselling, negotiation, mediation, arbitration or any combination of these.
Q: When can I apply for a property settlement or parenting orders?
A: There is no need to wait for a divorce application to be filed to apply for these orders. You can apply for these orders at any time following separation - though you must apply for property orders and spousal maintenance no later than 12 months after your divorce is finalised. You should also note that the Family Court requires parties to undertake some form of Pre-Action Dispute Resolution Procedures before applying to the Court. These include counselling, negotiation, mediation or arbitration. If you want to apply to the Court for parenting orders, you must first obtain a certificate to say that you have participated in dispute resolution.
Q: I am not married but have separated from my partner - can I get a property settlement?
A: A couple who have been in a de facto relationship for two years or more and separated after March 2009 may apply to the Court for a property settlement on similar grounds to a married couple. Couple includes a same-sex couple. Relationships of shorter duration may also come within the legislation in certain circumstances.
Q: Will each spouse generally be entitled to 50% of the property from the marriage?
A: There is no presumption that each spouse will receive 50% of the property. In making a property order, the Court will look at the contributions of each spouse, both financial and non-financial, the homemaker or parenting contributions and the ability of each spouse to provide for themselves and any children in their care in the future. The Court will also take into account what nett assets each party originally brought into the relationship and what other outside assistance has been contributed (e.g. inheritance, interest free loans and substantial financial gifts). Find out more in our article, The Property Settlement.
Q: Do I need to have a lawyer?
A: It is perfectly acceptable for a party to be self-represented in a Family Law proceeding and many people choose this option. However, matters are often very complicated to those not familiar with the area of law or the law in general and they can find the process extremely time consuming and frustrating. A self-represented party is also in danger of agreeing to settlements that do not adequately represent their interests or pursue incorrect arguments. If you do choose to be self-represented, it is a good idea to seek advice from a lawyer from time to time throughout your case.
Q: Do I have to support my adult child?
A: The Child Support Agency provides for support to continue up until the child finishes their secondary education. A parent of a child who turns 18 in their final years of schooling will be able to apply to the CSA for an extension on support payments until the last day of school. Also, children over 18 years old completing other forms of education (including University and TAFE courses) or who suffer from physical or mental disability can apply through the Family Court for financial maintenance from a parent, however, there are conditions to be met. Find our more in our Checklist on Adult Child Support.