Kate Austin Family Lawyers

BRISBANE (07) 3128 0222
SYDNEY (02) 8212 4770

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FAQs About
Divorce

  • Separation under the one roof
  • Reduction or exemption of court fees
  • Service of an application for divorce
  • Substituted service and dispensation of service for a divorce application
  • Objection to a divorce application
  • Attendance at court
  • When the divorce order takes effect
  • Divorce order
  • Freedom to remarry after a divorce
  • Rescission of divorce order
  • Property and maintenance orders after divorce
  • Effect of divorce on wills

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Instant Divorce Quote
Google Rating
4.9
Kate Austin Family Lawyers
Kate Austin Family Lawyers
4.9
Earth Angel
Earth Angel
04:57 29 Jan 19
At such a stressful time, Kate Austin Lawyers made my life so much easier. They worked efficiently and were so very paitient. They were clear, communicated perfectly and kind people from the first phone call. The one time cost was well worth their services. I highly recommend this Law Firm to everyone.
Antonietta Avgousti
Antonietta Avgousti
00:06 10 Jan 19
Kate Austin Family Lawyers have been nothing short of amazing! From the minute I spoke to Brendan when I made that initial enquiry, I knew I had stumbled across something great (just by surfing the web).. The patience and compassion he and Rachel showed me in dealing with my case was very much appreciated. Thank you both so much for making this daunting process as smooth and as easy as possible.
David Westbury
David Westbury
01:49 21 Dec 18
Firstly, a huge Thank you to the team Rachel, Tori & Brendan, at Kate Austin Family Lawyers.Family law problems are not an everyday event and when mine happened it was daunting to say the least.However from my first conversation, right through to the end of processing my Consent Orders & Property Transfers, the Team at Kate Austin Family Lawyers were friendly, timely, and they communicated with me on a level I understood. Overall an extremely professional company that made the whole process stress free.Going forward I wouldn't hesitate to use them again and highly recommend their services.Thanks again Team, I wish you all a very Merry Xmas and a Happy New Year.I will be having one thanks to all your hard work.D Westbury
Peet Gorman
Peet Gorman
23:39 18 Dec 18
I am really happy with Kate Austin Family Lawyer. All staff member are professional and informative. My property settlement consent order was approved by court within a week which was very impressive. Brendan, Rachel and Tori were helpful. Everything I asked for was acted in time. I would recommend anyone to contact Kate Austin Family Lawyer for their family matters.
DS Martin
DS Martin
04:13 12 Nov 18
Friendly, efficient and caring service. They make the process of Consent orders and property settlement as painless as possible for all concerned. I would highly recommend Kate Austin's Team to listen and expedite this for you. Tori was really friendly and took the time to understand our situation and to progress it as fast as possible. Thanks Tori, Brendan and Rachel.
Gail Keogh
Gail Keogh
11:08 24 Jul 18
I highly recommend Kate Austin Family Lawyers. Jessica was fantastic! Jessica explained the whole process, answered all our questions and made things easy during a tough time. Jessica was professional and understanding of our requirements. The process was simple and completed in timely fashion. Thanks Jessica, Brendan and team.
Blair Wright
Blair Wright
21:33 23 Jul 18
Rachel and her team are fantastic to deal with and made this difficult time very easy to go through. Thank you once again for all your help and I would recommend them to everyone.
Joanne Summers
Joanne Summers
08:25 23 Jul 18
The process of writing consent orders was made very simple by your knowledge and professionalism. Jessica was easy to talk with from my initial telephone call and easy to communicate with by email thereafter. Her manner was reassuring and considerate and she had the knowledge required to answer my questions. The fixed cost made budgeting easy and affordable. I have already recommended your company to a friend and will do so again in the future
Christie Gulley
Christie Gulley
09:23 17 Jul 18
Handelled my consent orders and property transfer efficiently and were always prompt with communication. About time there was a firm that you can trust to have your best interests in mind the whole time 😁 thanks Rachel, Brendan and team
Kylie Gilbert
Kylie Gilbert
05:31 13 Jul 18
I can highly recommend the team at Kate Austin Family Lawyers. They prepared Consent Orders and also organised the property transfers. From beginning to end everyone has been very friendly, professional and helpful and the whole process has been extremely stress free. The fees definitely did not break the bank and worth every $ to know that the process is done properly the first time. Jessica in particular has been very reassuring to me and it's been greatly appreciated. Thank you Kate Austin Lawyers!
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Separation Under The One Roof – Getting Divorce While Living Together

Being separated for the purposes of applying for a divorce does not mean that you have to physically live in a separate residence to your partner.

It is common for married couples to remain living under one roof despite being separated and seeking divorce (sometimes called cohabitation). This may be because they have family and parental responsibilities they need to fulfill, cultural or religious reasons or due to financial constraints.

If you file the application for divorce jointly and you are living under the one roof, then you will both need to file an affidavit with the application describing the living situation. If you are the sole applicant, then you also need to file an affidavit with that information.

The online application will also request that a third party such as a friend or a relative confirm the living arrangement. This is not necessary to the application and eventual granting of a divorce order, but it is common practice in divorce proceedings (Pavey 1976).

Here are some case examples of where cohabitation was considered for the application for divorce:

  • Todd and Todd (No 2) (1976) FLC 90-008;

  • Pavey and Pavey (1976) FLC 90-051;

  • Falk and Falk (1977) FLC 90-247.

Reduction Or Exemption Of Court Fees

You may be eligible for a reduction in the court fees or an exemption if you meet certain criteria.

 An applicant may be eligible for a reduced fee if they meet any of the following (note: if you have applied as joint applicants, you both will need to meet them):

  • have been granted legal aid; or

  • hold any of the following: healthcare card, pensioner concession card, seniors health card; or any other card that entitles you to health concessions; or

  • are an inmate of a prison or detained in a public institution; or

  • are under 18; or

  • are in receipt of Youth Allowance, Austudy or ABSTUDY benefits.

If any of the criteria applies, you will need to tick the box in the online application for divorce and provide evidence.

If you are not applying online, the evidence, application and the form called application for reduction of payment of divorce or decree of nullity – general will need to be submitted.

If the above doesn’t apply, you may still be eligible for a reduction if payment of the fee would cause financial hardship. This will be up to the court to decide based on a number of factors, such as your income, assets and day-to-day expenses. If you believe this applies, you will need to submit the form called application for reduction of payment of divorce or decree of nullity – financial hardship.

You may be eligible to have the fee waived if you meet the above criteria, are an Independent Children’s Lawyer, or can prove financial hardship.

If you think this applies, then you must complete an application for exemption from fees – general form or visit the court and file a form called application for exemption from fees – financial hardship with your application for divorce.

Service Of An Application For Divorce

If you are applying for a divorce as a sole applicant, then you are required to serve the following documents on the respondent by post:

  • a sealed copy of the Application for Divorce with the Notice of Application for Divorce attached to the front;

  • a sealed copy of the Affidavit of eFiling;

  • a copy of the Marriage, Families and Separation brochure;

  • an Acknowledgment of Service (Divorce);

  • any other documents that you filed with the application;

  • a letter requesting they sign the Acknowledgement of Service; and

  • a stamped self-addressed envelope for them to return the form.

Alternatively, you can arrange a third party to hand the documents to the respondent or to their lawyer (if the lawyer agrees, in writing, to accept service on their behalf).

Service must be completed at least 28 days before the hearing (or 42 if the respondent is overseas). Please record the date you carried out service.

Once service has been made, you must e-file the documents in the Commonwealth Courts Portal.

Substituted Service And Dispensation Of Service For A Divorce Application

If you are having trouble serving your spouse, then you can apply for either substituted service to be carried out, or have service dispensed with.

Substituted service

Substituted service allows you to serve the documents on a third person who the court is satisfied will bring those documents to the attention of your spouse.

Dispensation of service

If the court is satisfied that you have made all reasonable attempts to make service, you will either not have to do anything further to serve the documents, or receive instructions from the court as to how to proceed.

To apply for either substituted service or dispensation, you will need to complete an application in case form on the Commonwealth Courts Portal and attach an affidavit.

In your affidavit, you must explain all steps you have carried out to locate your spouse, such as:

  • what attempts, efforts and enquiries you made to find them;

  • when and how you last saw, spoke to or communicated in any way with them;

  • their last known address;

  • their nearest relatives and friends and what communication you had with them.

Please note that you should attend court to hear the outcome of this application (it is usually held on the same day and time as the divorce hearing). You may be required to give further information.

Objection To A Divorce Application

If you are the respondent and have been served with an application for divorce by your spouse and disagree, you must file a response within 28 days of being served the application (if within Australia) or 42 days if overseas.

In your response, you must outline why you oppose the divorce. As it is a no-fault system in Australia, the only ground for divorce is the irretrievable breakdown of marriage. Therefore, the only ways you could argue that the divorce application should not be granted if you could successfully prove there is a chance that you will both want to get back together, or that you have not in fact been separated for 12 months.

You can file the response via the Commonwealth Courts Portal or at the family law registry and then serve this on your spouse.

You must then attend the hearing to find out if the court grants the application for divorce.

Attendance At Court

You do not need to attend the hearing of the application for divorce except in some circumstances.

If you made the application for divorce yourself, you must attend the hearing if there is a child or children of the marriage aged 18 years or younger.

The circumstances where you are not bound to attend the hearing but should are:

  • when you have made an application for substituted service or dispensation, because you may be asked by the court to give further information about the attempts you made to serve the application for divorce on the respondent; and

  • you are the respondent and you are objecting to the application being granted.

You do not have to attend the hearing as a sole applicant if:

  • there was no response filed by your spouse to the application for divorce;

  • there are no children of the marriage under 18 years of age; and

  • no request has been made by the respondent not to hear the application in the absence of the parties.

If you made the application for divorce jointly, then you do not have to attend the hearing, even if there is a child or children of the marriage under 18 years of age.

If you cannot attend, you must fill out a form requesting to attend via telephone/videolink.

When The Divorce Order Takes Effect

If the application for divorce has been granted, then it will take effect one calendar month after the order is made (which is the date of the hearing).

The court will make the order only if it has been satisfied that proper arrangements have been made for the care, welfare and development of any children less than 18 years of age.

Where the court is not satisfied that there are proper arrangements in place, it will adjourn the proceedings to seek a report from a consultant to assess the proposed arrangements.

If one of the parties to the application for divorce dies before the order takes effect, then the other party must inform the court or a registrar by filing with the Federal Circuit Court a death certificate with an attached affidavit setting out the date and place of death.

Divorce Order

When the application for divorce is heard and then granted, the court will draft an order that declares that the divorce has taken effect. The divorce order records all the matters that were considered in making the decision to grant the application for divorce.

The divorce order is issued one month after the hearing, specifying the date that the order commences.

The divorce order will include a time limit for making claims regarding the division of property or maintenance, and will specify that the divorce order may vary or revoke a will that is in place. It will also name any children less than 18 years of age.

The granting of divorce does not include decisions on the division of property and other future arrangements at the same time. These must be pursued separately. For more information, visit the Parenting and Property & Finance pages on the Family Court website.

A copy of the divorce order will be given to both the applicant and the respondent.

Freedom To Remarry After A Divorce

The former spouses will be free to remarry after the date specified on the divorce order.

You should not make plans to remarry until the application for divorce has been granted and finalised. This is because it will not always be the case that the application for divorce is granted on the date of the hearing. For example, you may be asked by the court to provide further information or take additional steps before it can make the decision whether to grant the application or not.

You are, however, able to complete and lodge a Notice of Intended Marriage form with a celebrant. This must be done at least one month before the marriage ceremony and the celebrant must ensure they have viewed the final divorce order before performing the marriage.

Rescission Of Divorce Order – What Does This Mean?

When a divorce order is granted it is taken to have legal effect from the date specified on the order.

If, between the date of the hearing and the date on the order, you and your spouse resolve your issues and get back together, you can apply to the court to have the divorce order rescinded, which means that the order is cancelled and no longer has effect.

To do this, you and your spouse will jointly need to file with the court a form called an Application in a Case.

A divorce order can also be cancelled where the court is satisfied that there has been a miscarriage of justice in some way, for example by fraud, perjury, suppression of evidence or any other circumstance by one or both parties.

Property And Maintenance Orders After Divorce

A granting of an application for divorce does not mean that property and maintenance issues have been decided.

The divorce order will specify that in order to bring proceedings for the division of property and any maintenance, you must do this within 12 months after the date the order for divorce is final.

If you wish to commence proceedings for maintenance and the division of property after 12 months, you will need to file a separate application to obtain permission from the court to do so.

Please note that if the divorce took place outside of Australia then the 12 month period does not apply, as was the case in Anderson & McIntosh [2013] FamCAFC 200.

You and your former spouse can sort out how your property will be divided by either:

  • coming to an agreement without any court involvement and then formalising this with the courts (by e-filing Consent Orders); or

  • applying to the court for orders, in which the court will decide how the property and finances will be arranged, including whether and how much maintenance will be paid.

For more information on the different approaches and what forms to file, please visit this page.

If you are not able to reach a resolution on your own and decide to apply to have the court decide, then the following factors will be relevant:

  • your assets and debts, such as houses, cars and mortgages;

  • the financial contributions of the parties, both direct and indirect, such as wages and inheritances;

  • the non-financial contributions, such as child rearing and minding; and

  • future requirements and earning capacity, such as age, financial resources and care of children.

If you made the application for divorce jointly, then you do not have to attend the hearing, even if there is a child or children of the marriage under 18 years of age.

If you cannot attend, you must fill out a form requesting to attend via telephone/videolink.

Effect Of Divorce On Wills

By default, when a divorce is granted it means that any gifts that were to be given to the (now former) spouse are revoked, unless there is something contrary to this in the will itself, such as if the will stated that it was made “in contemplation of marriage”.

If the (former) spouse was the executor of the will, then they will be omitted from the will.

The same rule applies across Australia except in Western Australia, where the rule only applies if the divorce order was made after 9 February 2008.

It is advisable that you consider updating your will after the divorce order is final. If you fail to update your will following divorce, this means that your former spouse may be awarded part of your estate.

Contact Us

Kate Austin Family Lawyers
Head office:
Level 8, 193 North Quay
Brisbane QLD 4000

Sydney office:
Level 4, 20 Bond street
Sydney, NSW 2000

Office Hours
Monday – Friday: 9AM – 4PM

Or Request a Phone Call

Our Office:

Kate Austin Law

Office Location

Kate Austin Family Lawyers

Brisbane office:
level 8, 193 North Quay
Brisbane, QLD 4000

Sydney office:
Level 4, 20 Bond street
Sydney, NSW 2000

Kate Austin Law

Our Office Hours

Monday – Friday : 9:00 am – 5:00 pm
Brisbane Phone: (07) 3128 0222
Sydney Phone: (02) 8212 4770

Google Rating
4.9
Kate Austin Family Lawyers
Kate Austin Family Lawyers
4.9
Joanne Summers
Joanne Summers
08:25 23 Jul 18
The process of writing consent orders was made very simple by your knowledge and professionalism. Jessica was easy to talk with from my initial telephone call and easy to communicate with by email thereafter. Her manner was reassuring and considerate and she had the knowledge required to answer my questions. The fixed cost made budgeting easy and affordable. I have already recommended your company to a friend and will do so again in the futureread more
Kylie Gilbert
Kylie Gilbert
05:31 13 Jul 18
I can highly recommend the team at Kate Austin Family Lawyers. They prepared Consent Orders and also organised the property transfers. From beginning to end everyone has been very friendly, professional and helpful and the whole process has been extremely stress free. The fees definitely did not break the bank and worth every $ to know that the process is done properly the first time. Jessica in particular has been very reassuring to me and it's been greatly appreciated. Thank you Kate Austin Lawyers!read more
Gail Keogh
Gail Keogh
11:08 24 Jul 18
I highly recommend Kate Austin Family Lawyers. Jessica was fantastic! Jessica explained the whole process, answered all our questions and made things easy during a tough time. Jessica was professional and understanding of our requirements. The process was simple and completed in timely fashion. Thanks Jessica, Brendan and team.read more
Christie Gulley
Christie Gulley
09:23 17 Jul 18
Handelled my consent orders and property transfer efficiently and were always prompt with communication. About time there was a firm that you can trust to have your best interests in mind the whole time 😁 thanks Rachel, Brendan and teamread more
Blair Wright
Blair Wright
21:33 23 Jul 18
Rachel and her team are fantastic to deal with and made this difficult time very easy to go through. Thank you once again for all your help and I would recommend them to everyone.read more
Antonietta Avgousti
Antonietta Avgousti
00:06 10 Jan 19
Kate Austin Family Lawyers have been nothing short of amazing! From the minute I spoke to Brendan when I made that initial enquiry, I knew I had stumbled across something great (just by surfing the web).. The patience and compassion he and Rachel showed me in dealing with my case was very much appreciated. Thank you both so much for making this daunting process as smooth and as easy as possible.read more
Earth Angel
Earth Angel
04:57 29 Jan 19
At such a stressful time, Kate Austin Lawyers made my life so much easier. They worked efficiently and were so very paitient. They were clear, communicated perfectly and kind people from the first phone call. The one time cost was well worth their services. I highly recommend this Law Firm to everyone.read more
David Westbury
David Westbury
01:49 21 Dec 18
Firstly, a huge Thank you to the team Rachel, Tori & Brendan, at Kate Austin Family Lawyers.Family law problems are not an everyday event and when mine happened it was daunting to say the least.However from my first conversation, right through to the end of processing my Consent Orders & Property Transfers, the Team at Kate Austin Family Lawyers were friendly, timely, and they communicated with me on a level I understood. Overall an extremely professional company that made the whole process stress free.Going forward I wouldn't hesitate to use them again and highly recommend their services.Thanks again Team, I wish you all a very Merry Xmas and a Happy New Year.I will be having one thanks to all your hard work.D Westburyread more
Peet Gorman
Peet Gorman
23:39 18 Dec 18
I am really happy with Kate Austin Family Lawyer. All staff member are professional and informative. My property settlement consent order was approved by court within a week which was very impressive. Brendan, Rachel and Tori were helpful. Everything I asked for was acted in time. I would recommend anyone to contact Kate Austin Family Lawyer for their family matters.read more
DS Martin
DS Martin
04:13 12 Nov 18
Friendly, efficient and caring service. They make the process of Consent orders and property settlement as painless as possible for all concerned. I would highly recommend Kate Austin's Team to listen and expedite this for you. Tori was really friendly and took the time to understand our situation and to progress it as fast as possible. Thanks Tori, Brendan and Rachel.read more
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