Separating from a spouse can be extremely difficult and, for some, divorce is not something that they want to consider. Often, however, separated spouses wish to be divorced as quickly as possible. Our Family Law team is often asked how quickly a divorce can be granted. The answer: it depends.
Grounds for Divorce
There is only one ground of divorce: the irretrievable breakdown of the marriage. If you cannot establish this ground, you cannot get divorced. If there is any prospect of reconciliation, you cannot get divorced.
The irretrievable breakdown of a marriage can be established if one of the following is true:
- Since the date of the marriage, your spouse has committed adultery. The irretrievable breakdown of marriage will not be established if you knew or believed that your spouse was committing adultery and continued to cohabit with them.
- Since the date of the marriage your spouse has, at any time, behaved in such a way that you cannot reasonably be expected to cohabit with them. It does not matter whether this behaviour has been active or passive or as a result of mental health difficulties.
- You have not cohabited with your spouse for a period of one year and your spouse consents to the granting of the divorce; or
- There has been no cohabitation for a period of two years.
Simplified Divorce
A Simplified Divorce (often referred to as a “DIY divorce”) is the quickest and simplest way of obtaining a decree of divorce. You can only use the Simplified Divorce procedure if (a) you have been separated for a period of one year and your spouse consents, or if you have been separated for a period of two years and (b) there are no children of the marriage under the age of 16 and no financial issues to resolve. Dependent on the court's workload, a divorce order is usually granted within around 2 - 3 months of you lodging the paperwork.
Ordinary Procedure
If there are children of the marriage under the age of 16 and/or you have outstanding financial issues that require resolution, you are unable to raise a Simplified Divorce action and will have to raise an Ordinary action. If your spouse does not defend the divorce proceedings, you can expect a court decree within approximately 2 - 3 months from raising the action, again depending on the court's workload.
Defended Actions
When someone asks the court to grant an order for divorce, often they ask for other orders at the same time, usually relating to children or finances. In most circumstances, if such an order is sought, the action will be defended. Sometimes actions for divorce are defended even if no financial orders are sought, simply because one spouse disputes the allegation of adultery or unreasonable behaviour. If an action is defended then it is very difficult to state with any certainty how long proceedings will take. Often the situation or dispute is resolved extra-judicially (out of court) and the action then proceeds as if it were undefended. If this is not possible, however, further court procedure is required and, ordinarily, an evidential hearing is assigned several months down the line.
In essence, ultimately the length of time divorce proceedings will take to finalise will depend on you and your spouse. Court should always be used as a last resort to resolve issues regarding children and finances. If these issues can be resolved prior to raising the action for divorce, the court process will be a lot simpler, quicker and a lot less costly.
If you have any queries regarding divorce, a member of our family law team would be happy to discuss matters with you in more detail.
