Divorce in Regional Queensland: What You Need to Know

The term "divorce" is often associated with things that it is not.

It is often mistaken as the "catch-all" legal process that involves the separation of matrimonial assets and the resolution of parenting arrangements when children are involved. A divorce is neither of these things.

Simply put, divorce is the legal end of a marriage.  It is a separate process from the division of matrimonial assets or the determination of arrangements for children.  

In Australia, we have a "no-fault" divorce system. This means that the Court doesn’t consider why a marriage ended - only that it has broken down with no chance of reconciliation. 

For those living in regional and rural areas, the process of applying for divorce can present unique considerations.   

Who can apply for divorce? 

You are eligible to apply for divorce from your spouse in Australia if: 

• You or your spouse are an Australian citizen; or 

• You or your spouse regard Australia as your home and you intend to live indefinitely in Australia; or 

• You or your spouse ordinarily live in Australia and have done so for at least 12 months immediately before filing for divorce. 

When can I apply for divorce? 

You must be separated for at least 12 months before you can apply for divorce.  

If you and your spouse disagree on the date of separation, you will need to provide evidence to the Court as to why you say separation occurred should be accepted. 

If you have been married for less than 2 years you need to attend counselling or obtain permission from the Court to proceed with a divorce application without attending counselling. A certificate from a counsellor must be provided to the Court with your divorce application.   

If there were periods when you lived separated “under the same roof”, you will need to advise the Court of when this occurred.   

Which spouse applies? 

You can make an application on your own or jointly with your former spouse.  

The advantage of filing a joint application is you will avoid the costs associated with engaging a bailiff or process server to travel to your former spouse to hand them a copy of your divorce application.  

If you file your own application, you must arrange for the application to be personally served on your former spouse. To do this, you need to engage a bailiff or process server to travel out to your spouse and personally hand them your divorce application.  

For those living in rural and regional communities, this sometimes present unique challenges. It may be that your former spouse lives on a rural property and is not always home during the day.  It may be that your former spouse is a "fly-in-fly-out" worker and you are uncertain of their roster.  

Depending on your situation, the Court may grant you leave to affect service by post, email or other electronic means. This is known as substituted service. It is not guaranteed that the Court will grant you this leave and you need to tell the Court why personal service cannot be affected.  

What will I need to apply? 

You will need a copy of your marriage certificate. If you no longer have a copy of your marriage certificate, you will need to contact Births, Deaths and Marriages and order another copy.  

If you live in a rural area and are not within close range of a Births, Deaths and Marriages registry, our team can assist you.  

Will I have to attend Court for my Divorce? 

Attendance is required if your application falls into one of the following categories: 

1. You have filed a sole application and you have a child or children of the marriage under 18 years; 

2. You have advised the Court in your application that you wish to attend Court when your application is heard; 

3. If you or your former spouse object to the application being heard without you present; 

4. Your former spouse has filed a response opposing your application; or 

5. You are asking the Court for substituted service or a dispensation of service.  

Divorce hearings are conducted electronically by telephone or video link. The move towards electronic hearings for divorce has been welcomed for those living in rural and regional areas.  

The Court will provide you with the details before the hearing date. The Registrar will ask you if you still want to proceed with your application. The Registrar may ask you if there have been any changes to your personal circumstances since you filed your application. For example, the Registrar may ask if the arrangements in place for your children remain current or have changed.  

When will my Divorce take effect? 

Your divorce will take effect 1 month and 1 day after it is granted by the Court.  

You will be able to download an electronic copy of the Divorce Order from the Commonwealth Courts Portal.  

Divorce and property settlement – what's the connection? 

Property settlement is the legal process of documenting how you and your former spouse will divide the assets and liabilities of your marriage.  

There are time limits that apply to having a property settlement: 

1. If you are separated but not divorced, no time limits apply. 

2. Once your divorce takes effect, you have 12 months to apply to the Court for property settlement.  

If you don't apply to the Court within 12 months of your divorce, you are considered to be "out of time". You can ask for leave of the Court to have a property settlement "out of time" but there is no guarantee the Court will grant you this leave. The Court's decision to grant you leave "out of time" is discretionary and depends on your individual circumstances. Our team has a wealth of knowledge in dealing with property settlements with this issue and can give you advice that is personal to your situation.

Ultimately, you should not delay your property settlement once your divorce takes effect, and you should obtain legal advice either before your divorce occurs or very soon after. If you can avoid it, it is best to avoid having to ask the Court for leave to have a property settlement "out of time".   

  Get the right support 

Navigating the divorce process can be daunting and ensuring that you comply with the Court's requirements for service within the right time frames can be challenging.  

Our team at Creevey Horrell Lawyers is ready to assist you through this process as you navigate this new stage in your life. Please reach out to our friendly team if you are going through a divorce or need assistance in taking the first steps. We would be glad to assist you.  

This is general advice only. You should obtain legal advice specific to your individual circumstances. Call our team today on 07 3009 6555 for an initial consultation on a divorce matter.