FAQs: Getting a Divorce in Australia
Are divorce settlements taxable?
A divorce does not settle your property matters. Divorce and property settlement are two separate matters. Property settlements dealing with assets subject to capital gains can trigger capital gains or capital losses where those properties are sold and/or disposed of, as opposed to being transferred between the parties. There are various considerations, which should be discussed with your family lawyer, accountant, and financial planner before finalising any property settlement.
Are divorce records available to the public?
No, they are not. Section 121 of the Family Law Act 1975 restricts the publication of court proceedings, which includes divorce.
Can divorce be free?
No, but you can apply for a reduced fee or an exemption of Court fees if you are eligible (see below for more). If you are not eligible and paying the full fee is not financially feasible, you can apply for a reduced fee due to financial difficulty.
You can apply for an exemption of court fees if:
you hold any of the following cards issued by the Department of Human Services:
health care card
pensioner concession card
Commonwealth seniors health card
or any other card issued by the Department of Human Services or the Department of Veterans’ Affairs that certifies your entitlement to Commonwealth health concessions
you have been granted Legal Aid
you are an Independent Children’s Lawyer appointed to represent a child’s interests in proceedings under the Family Law Act (only exempt for Subpoena and Interim application fees)
you are receiving youth allowance, Austudy or ABSTUDY payments
you are under the age of 18
you are an inmate of a prison or otherwise legally detained in a public institution.
If there is more than one applicant, all applicants must meet the requirements for an exemption/reduction or the full fee applies.
What if none of the above applies?
You may still be eligible to be exempted from paying the fee if your income, day-to-day living expenses, liabilities, and assets are at a point where paying the full fee would cause you financial hardship. You would have to complete a three-part test to assess whether you are exempted.
Can divorce cause PTSD?
Divorce in some ways can be psychologically damaging though not all lead to PTSD, however, individuals going through such could feel deep emotional trauma enough to lead to PTSD-like symptoms.
Can divorce be contested?
Yes, this happens when the Respondent files a response to the Divorce Application, generally taking an issue with the Applicants Application. However, Australia has a no-fault divorce system, so as long as the Court is satisfied that it has jurisdiction to grant the divorce, then the scope for opposing a divorce remains legislatively narrow. When in doubt, speak with an experienced family lawyer.
Can divorce be amicable?
Yes, divorce can be amicable. However, the word divorce is often generally used by the public as a blanket term to refer to various other matters including, but not limited to child custody, support and visitation rights, spousal support and division of property, etc. It is best to speak to a family lawyer to understand how these various factors may need to be considered at the end of your relationship with your ex-partner.
Can divorce force the sale of a house?
A divorce is simply a change in your legal status. Once your Divorce Order is final, you have 12 months to finalise your property matter or to institute a property proceeding. Any applications made with the court past 12 months from the date of your Divorce Order may not be heard without first applying for leave of the Court, or unless the other side consents to the out of time application. It is best to be aware of these time limitations before filing for a divorce and to speak with a family lawyer first. An out of time application for property proceedings is not an automatic right, so beware.
In property proceedings before a Family Court Judge, the question posed by section 79(2) of the Family Law Act 1975, is whether having regard to those interests, the Court is satisfied that it is just and equitable to make a property settlement orders. In other words, there are various factors that the Court needs to consider before it can be determined what an appropriate property settlement is. Depending on the circumstances of the case and the parties' financial capacity to facilitate a settlement, it may be required that the matrimonial home be sold. We recommend speaking with a family lawyer to better understand your rights and the relevant facts of your case as every family law matter is unique.
Can divorce be easy?
Yes. A joint divorce application can be done where both parties amicably agree to the divorce and all facts. Then both parties will sign the same divorce papers for filing with the Court by a joint application. However, if one party refuses to sign the joint divorce application then it is not possible to file for a divorce application jointly, and you may need to file a sole application. In either scenario, it would be best to hire a family lawyer to assist you in going through the whole divorce process.
Can divorce be reversed?
Yes, once a divorce hearing has occurred, there is a cooling-off period of one month and one day to allow for contingencies, which could include discontinuance of the divorce. In the absence of duress or capacity issues, once a Divorce Order has been issued, it becomes final and absolute.
Can divorce papers be served by email?
No. Divorce papers can only be served by personal service under the Court rules for an Initiating Application. While service in some instances may be affective by post, hand-delivery must be done. Service by hand must be by a third party and cannot be made by the Applicant personally. Service may be made by a family member, friend, process service or through a family lawyer.
To get a free consultation with one of our divorce lawyers or to learn how to go about getting a divorce in Australia, contact us by phone 1800 572 417, chat or by completing the form below.