Remarrying After A Divorce

In Australia, it is against the law for someone to get married while they are still married to another person. It is therefore essential to finalise a divorce before marrying again. Generally, a person can remarry one month and one day after receiving their grant of divorce, however, there are other factors to consider before remarrying after a divorce.

Process of divorce

The Family Law Act 1975 governs both the contract of marriage and its dissolution in Australia. Section 59 of the Act also explicitly provides for a party to marry again once a divorce order has taken effect. Remarrying before a divorce is finalised is bigamy, which is illegal, and also renders the new marriage void. As such, a person intent on remarrying must closely follow all the procedures involved in obtaining a divorce to avoid any timing issues that would invalidate their new marriage.  

Either party can apply for a divorce through the Federal Circuit and Family Court of Australia (or the Family Court of Western Australia), or the parties can choose to lodge the application jointly. At the time of the application, the parties will be given a hearing date when the court will consider the application for divorce. Not unnaturally, parties tend to focus on this date as the day they are going to receive their divorce, but this is a misapprehension. Although it is a common outcome, the parties should not assume that the divorce will be granted at the first court hearing. The court may well require additional information before it can make the divorce order, or there may be an administrative or technical impediment that delays the granting of the order.

Any plans to remarry should account for potential delays in obtaining the divorce. For instance, it may take longer than expected to locate and serve divorce papers on an ex-partner, or the court may not be satisfied with the documentation provided in the initial application. In these circumstances, the applicant will have to postpone their wedding until the issues are resolved, the hearing held, and the divorce finalised.

In addition, even if the hearing goes well, this is not the end of the divorce process. A divorce order does not take effect for one month and one day after the date of the hearing. To be on the safe side, it is best not to set a wedding date too close to the date the divorce is expected to be finalised.

Notice of intended marriage

Before remarrying, it is necessary to present the authorised marriage celebrant with a Notice of Intended Marriage that meets all the criteria specified under the Marriage Act 1961. The Notice of Intended Marriage must be provided at least one month before the ceremony date, but it is possible to lodge this Notice before receiving the final divorce order. In that case, the celebrant will need to view a copy of the divorce order before they can perform the wedding.

Financial considerations

It is important to bear in mind that divorce is a totally separate process to a property settlement. A separated couple can agree and finalise a property settlement before obtaining a divorce. Conversely, the parties can also reach a property settlement after the divorce is finalised. However, it is vital to act promptly, as there is only 12 months to initiate a property settlement or spousal maintenance application following the dissolution of the marriage. The court may extend this time limit, but only if the applicant has a good reason for the delay.

It is highly advisable to resolve all financial matters with a former spouse before remarrying. While a former spouse cannot make a settlement claim against the assets of a new partner, the financial circumstances of a new partner can be a consideration in the court’s assessment of a just and equitable property settlement. Once the property settlement is finalised, a former spouse generally cannot make a further claim. It is best to seek legal advice from a family law solicitor with a focus on property settlements to better understand the rights and obligations of each party.

Spousal maintenance

Unless the court orders otherwise, a person is no longer entitled to spousal maintenance if they remarry. Similarly, if a person who receives spousal maintenance enters a de facto relationship, the court will assess whether there is a continuing need for spousal support. 

Are you thinking about getting married but have questions about the timing of remarrying after a divorce? It is vital to make sure that your divorce is finalised before the wedding date. Go To Court Lawyers can provide tailored support if you are divorcing and help you navigate the legal complexities of remarrying after a divorce. Please get in contact with our offices on 1300 636 846 today for any legal assistance.