HOW TO APPLY FOR A DIVORCE?

 

 

Who may apply for a Divorce?

The Family Law Act 1975 introduced “no fault divorce” in Australia; that is the only grounds for divorce is that your marriage has broken down irretrievably and there is no reasonable likelihood that you and your spouse will resume your relationship.

To apply for an application for Divorce you and your spouse:

  • Must be married (either in Australia or Overseas);
  • Must have been separated for at least 12 months and one day;

How do I make an Application for Divorce?

Divorce applications are now filed online through the Federal Circuit Court of Australia website 
A divorce kit can be downloaded from the Federal Circuit Court of Australia website which sets out the information needed and steps to complete the application. The following documents should also be attached to the Application:

  • The application sets out details relating to the marriage, separation, both spouses’ current residence(s), any arrangements that may be in place pertaining to children under the age of 18.
  • Generally speaking, the process of applying for a divorce is relatively straightforward.
  • An application for Divorce may be made by one spouse alone or by both spouses jointly. If the application is made by one spouse alone, the application must be personally served on the other spouse and in circumstances where there are children under the age of 18, the filing spouse is required to attend the divorce hearing.
  • Copies of any Court Orders in relation to parenting arrangements or property settlement matters should be attached to the application.
  • A copy of the relevant Marriage Certificate. If the Marriage Certificate is not in English, you will need an English translation of it, together with an Affidavit from the translator.
  • If you weren’t born in Australia you will need a copy of your certificate of Australian Citizenship or any documentation sufficiently proving you are legally in Australia and have been living in Australia for the past 12 months.
  • If you have made a sole application for Divorce, once you have filed your divorce application on the Federal Circuit Court website you will need to provide a copy to your spouse.

You must serve your spouse with a copy of the Application:

  • At least 28 days prior to the hearing date if they live in Australia; or
  • At least 42 days prior to the hearing date if they live outside Australia.

You are not allowed to personally serve the divorce application yourself.  Service can be affected in the following ways:

  • By post;
  • By using a process server;
  • By getting someone that you know to serve the document on your wife/husband.

When you serve your divorce application, you must also provide the following documents:

You must file a copy of the Acknowledgement of Service signed by your spouse with the Court to demonstrate to the Court that they are aware of the divorce proceedings.

If you are confident that your spouse will sign and return the acknowledgement of service form, you should post it with your divorce application and the Marriage Families and Separation brochure with a self-addressed, stamped envelope requesting your husband/wife to sign, date and return the Acknowledgement of Service form in the envelope.  When you receive the Acknowledgement form back, you need to sign a statement (called an affidavit) confirming that the signature is that of your spouse.

If you are not confident that they will acknowledge service, it is sensible to use either a process server or a friend to serve the document personally on your husband/wife.  They can ask the person to sign the Acknowledgement at the time of service.  They will then need to swear/affirm a statement called an affidavit confirming that they served the document.

The affidavits of service need to be filed in Court prior to the day on which your matter is heard to prove to the Court that you have served the documents on your husband/wife.

More information regarding service of the Application can be located on the Federal Circuit Court of Australia website.

What if I’ve lived with my spouse within the last 12 months?

In today’s current property market, it is understandable that people can’t always immediately move out of the martial property due to their finances or the fact that they wish to remain living in the home to care for their children.

If you and your spouse have continued to live in the same home following separation, this does not preclude you from filing an application for Divorce.

In circumstances where spouses have separated, but have continued to live together under the one roof within the 12 months prior to the application for divorce being filed, each spouse will be required to file an affidavit evidencing the fact that there has been a change in circumstances, and that the marriage has broken down to an irretrievable point.

If only one spouse is filing the application for divorce, they will be required to file an affidavit in support of this, along with an affidavit made by a supporting witness sufficiently addressing these circumstances.

More information as to the type of information that should be contained in an Affidavit in support of an application for divorce can be found in the Federal Circuit Court of Australia publication Separated but living under one roof.

What If I’ve been married for less than 2 years?

Generally, unless there are extenuating circumstances, if parties have been married for less than two years, they must undertake counselling and file a counselling certificate. Counselling can be arranged through the Family Relationship Advice Line. If a party is fearful of their safety or are genuinely unable to attend counselling due to one party being missing or overseas, then an affidavit will need to be filed with the Court.

When does the divorce take effect?

The Divorce Order will take effect one month and one day after the Registrar grants to the Divorce Application.

Is filing for divorce the same as making an agreement on property and care arrangements for the children?

There is a common misconception that the granting of a divorce also addresses the division of matrimonial property and the care arrangements for the children of the marriage. This is not the case. The granting of the divorce simply recognizes the marriage has ended.

An agreement relating to these issues can be reached either before or after the divorce application has been filed.  If you wish to file for divorce prior to you and your spouse reaching a formal agreement on the separation of the matrimonial property, you will only have a period of 12 months following the granting of the Divorce Order to commence proceedings without seeking leave of the court.

Can I oppose a Divorce Application?

There are two main reasons that a divorce application can be opposed to, being:

  • You and your spouse have not been separated for a period of 12 months or more as alleged in the application; or
  • That the Court does not have jurisdiction to deal with the divorce application. If a divorce is opposed to on the above grounds a Response to Divorce document will need to be filed with the Court outlining the reasons for the opposition and the orders sought and the opposing party will need to be present at Court when the Divorce is listed.

If you require assistance to prepare, file and serve a Divorce Application or you have been served with Divorce Application and need advice please do not hesitate to our Family Law team:

You cannot object to a divorce application merely because you do not want to be divorced.

Vicki Kelly, Accredited Family Law Specialist, vkelly@mtpartners.com.au      

Emma Shuttleworth, eshuttleworth@mtpartners.com.au

Renee Smith, Accredited Family Law Specialist, rsmith@mtpartners.com.au 

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