Sydney Divorce Lawyers

You can apply for a divorce so long as you have been separated for a period of 12 months or longer. If you reconcile during that time, even for a short duration, the period might have to be extended although in some circumstances broken separation periods may be able to be added together.

Yes. There are many people who divorce whilst living under the one roof. However, if you do apply for divorce, you will need to show the Court evidence that you are separated, in particular about sleeping separately in an affidavit. We can assist you in preparing this document.

You can only oppose a divorce application if you have not been separated for 12 months or more or if you allege that the Court does not have jurisdiction (for example, if you have already been divorced in another country) or if you allege there was never a valid marriage.

If you still want a divorce granted but disagree with the facts alleged by your former spouse in their application, you can file a “Response” which will set out which facts you disagree with; sometimes dates can be critical for other purposes for instance.

No. Your divorce application is separate to any application for parenting or property to be divided.

No. The two processes are completely separate. Arrangements about property and parenting issues can be made at any stage following separation. However, applications for property settlement must be filed within 12 months of your divorce, if you decide to divorce before starting any application to divide assets.

If you or your former spouse are Australia citizens, permanent residents or regard Australia as your permanent home now, then you can file an application for divorce in Australia.

When you get divorced, some parts of your will can become void. For example, any gifts you have made to your former spouse or any appointment of them as an executor, trustee or as guardian of children will no longer be valid. If you are unsure about how your divorce will affect your will, our estate team can assist you in guiding you through this process and updating your will where necessary.

The process takes at least 5 months and depends on where your case falls in the ‘queue of cases’. Your Application may take longer to process if one party is residing overseas, or if there are not adequate parenting arrangements in place for the children or the circumstances of your separation are ‘unclear’.

​You must be separated for 12 months and that can be under one roof. If you reconcile during that time, even for a short duration, the period might have to extend and you need advice.

Our standard fee starts at $1,000 plus the Court’s government lodgement fee (currently $910). If for example, you have a Marriage Certificate in another language, can’t find the other spouse to inform them of  the hearing date of a divorce or have been separated under one roof, our fees might be higher. We will tell you at our first conference with you what our fees will likely be.

In some cases where there is a property dispute as well as a divorce as part of the separation process you can ask the court to make an order for your partner to pay you some money for your legal fees or other expenses.

For a court to do this they must be satisfied that you will get at least that amount of money at the end of your property dispute. These orders are rare, and your partner generally has to have a much higher income than you, or valuable property in his or her name, and they will also have to be left with enough money for them to live. Any money you get in advance may be taken off the amount you get at the end of your property dispute.

In many cases, one spouse in a marriage is the ‘primary income earner’ and the other spouse either does not work or works part-time only. The Court, based on the Family Law Act, has an obligation to ensure that once spouses separate and two households are set up, a non-working or part-time working spouse is not suddenly without funds to afford basic necessities such as food.

This is because the parties of a marriage (that is, you and your spouse/partner), as a couple, made the decision (whether consensual or otherwise) that one spouse would not work and that the other would be the primary income earner for the household.

For this reason, the marriage as a whole has to pay for each spouse’s living costs after separation often until there can be a final hearing to divide the assets. This payment is called spouse maintenance. It is often a weekly sum of money paid (sometimes a lumpsum) to a spouse for living costs and must be paid by the primary income earning spouse.

To find out more about Spousal Maintenance visit this page.

No. The court does not consider which partner was at fault in the breakdown of a marriage, only that the marriage has broken down irretrievably, demonstrated by 12 months of separation. This is known as no-fault divorce and has been the case in Australia since 1975, as part of the Family Law Act.

While the court doesn’t consider either partner’s behaviour in divorce, behaviour may be relevant when the court considers other matters such as parenting arrangements. For example, a history of mental illness, drug or alcohol abuse or domestic violence in the marriage may be considered when the court makes Parenting Orders.

No. When couples separate there are many factors to consider, and everyone’s situation will be different, but there are very different timelines for the various legal processes that people usually go through when getting divorced. We’ve outlined the different timelines for some of the procedures below:

Divorce Applications

To apply for a divorce you must have been separated from your partner for 12 months or more. It is generally a good idea to speak to a divorce lawyer before the 12 month period so you know your legal rights and responsibilities, and have an idea of how the process will work. There are often other aspects of separation that a lawyer can assist with that can be started immediately, such as splitting property or working out will happen with children.

As mentioned above your former partner needs to be served the divorce documents at least 28 days before the hearing if they are in Australia, and 42 days before if they are overseas.

If you have been served divorce papers you must also serve your Response to Divorce within these same timeframes (within 28 days if you were served in Australia, within 42 if you were served overseas). It is important to respond not just if you want to oppose an application, but also (as is the most common reason) if you need or want to dispute any facts or correct any errors in a divorce application. Divorce applications remain in a court file, so it is important for this record to be accurate and truthful.

Parenting arrangements and child support

The decisions on what will happen with any children can start to be made immediately after separation; there is no need to wait for official divorce documents. Decisions on where children will live, who they will live with or how long they will spend with each parent will have to be negotiated straight away. Depending on the nature of the agreement these can be changed in court or over time. In some cases you have to have made agreements about your children before a divorce can be finalised – a court can grant a divorce but refuse to make it final until it is satisfied that proper arrangements have been made for your children.

Spousal Maintenance

You may be able to claim spousal maintenance as soon as you separate, or you might be obliged to pay an amount you didn’t expect to have to meet, and it must be done within 12 months of a divorce. In some circumstances you can even claim spousal maintenance if you are still married, such as in a situation where you are still living with your partner but he or she will not give you any money to live on.

Settlement of property and other assets

Your property, including your home, car, small business or any financial assets can be divided as soon as you separate; there is no need to wait until the divorce is finalised. In some cases, for example if you’re concerned your partner will sell or give away assets, or take out loans without telling you during the separation you can take urgent action to stop this. The court can make an injunction (an urgent order) to stop your partner taking action with property until the court makes a decision on what should happen overall. An injunction can even apply to property that is (and has always been) legally in your partner’s name.

It is very important to stick to the prescribed timelines for all these activities. If you want to apply later, you will need to seek ‘leave of the Court’ – special permission which is only given in exceptional circumstances. To do this you will have to provide an explanation to the court about why you failed to commence the proceedings within the required time, and show that the failure of the court to make an order would cause you hardship. The court granting this permission is very uncommon, so it is important to seek accurate advice and plan well.

A chat with a lawyer as soon as you are considering divorce or separation can help make sure proceedings run to schedule and you are able to receive all your legal entitlements.

Things you might like to think about and documents you may want to take to your lawyer:

• • marriage certificate

• • bank statements including details on credit cards, savings, mortgages or other loans

• • superannuation statements

• • insurance policies or statements

• • title deeds of any property you own (or information about where they are held)

• • tax returns and Notices of Assessment, both personal and for any businesses

• • receipts for major items you bought before, during or after the relationship

• • contact details for your partner, or your partner’s lawyer

• • family and relationship information, including important dates such as when your relationship started, when you got married, and when you separated

It is worth noting that if you don’t have access to any of these documents, or are concerned that your partner is trying to deceive you, or prevent you accessing information about the value of any property, then your lawyer will be able to assist with the situation. LSW’s team of expert divorce lawyers have access to a range of services that can be of assistance, such as forensic accountants that are able to assess the value of businesses, valuers for home values or other property.

To see some of the things you might have to consider, and for a place to write them down, you can start by using our online helper tool.

Married same-sex couples have the same legal rights as married heterosexual couples. This includes couples from marriages conducted overseas that occurred before the legal recognition of same-sex marriage in Australia (7 December 2017). These overseas marriages are recognised retrospectively as long as they meet the other requirements of a marriage (either heterosexual or same-sex) under the Family Law Act.

An annulment – or declaration of nullity – is a finding that there was no legal marriage between two parties, even though a marriage ceremony may have taken place. You can apply to have your marriage annulled if:

1. you were tricked or forced to marry someone
2. one or both of you were already married to someone else at the time of the wedding
3. one of the parties to the marriage was under 18
4. you were not able to understand what the marriage ceremony was (for example because of an overseas ceremony where you didn’t understand the language)
5. the parties did not comply with the laws in relation to the marriage in the place they were married
6. the person you married is a close relative (parent, grandparent, child or sibling)
7. either of the parties did not give their real consent to the marriage because:
8. consent was obtained by duress or fraud,
9. one party was mistaken as to the identity of who they were marrying or the nature of the ceremony,
10. one party was mentally incapable of understanding the nature and the effect of the marriage ceremony.

In Australia, you cannot have a marriage annulled for a change of mind, not having lived together, non-consummation, or even because one partner commits serious crimes in the relationship such as domestic violence. You will have to apply for a divorce in these circumstances.

To arrange for an annulment, you or your divorce lawyer will have to file an Initiating Application, as well as an affidavit (a sworn or solemnly affirmed statement) which outlines :

• the facts relied on to have the marriage annulled,
• details of the type of marriage ceremony performed

As in the process for divorce, you must serve (or provide service to) the other party to the annulment, meaning you give them a copy of the important documents. Just as with divorce documents, these can be hand-delivered, delivered by post or through each party’s divorce lawyer. Documents must be served with more notice for an annulment than a divorce, 42 days before a court hearing for a spouse in Australia, 56 days for a spouse overseas.