Divorce

What is Divorce?

A Divorce is the legal ending of a marriage. A Divorce does not include orders about property or children; these issues must be resolved separately.

What steps are involved in getting divorced?

 1) Separation

In order to be eligible to apply for a divorce, you must show that your marriage has broken down and is irreparable. In order to prove this you must have been separated from your spouse for at least 12 months (for further information, see ‘Separation’).

2) Applying for a Divorce

After you have been separated for 12 months, you are able to lodge an application for Divorce (for further information, see ‘Application for Divorce’).

3) Hearing

When you lodge your Divorce application you will be assigned a hearing date and time. You may be required to attend this hearing (for further information, see ‘Attending your Hearing’).

4) Finalisation of Divorce

If the hearing is successful, the registrar will announce an order for Divorce. Your Divorce will become final one month and one day following this announcement (for further information, see ‘Following Finalisation of Divorce’).

 

Separation

Separation is the first step to legally ending your marriage. Separation refers to the termination of your marital duties and relationship. Separation may need to be proved at a later date, to the court. The date of separation will also be important when your divorce is being finalised. Some factors that can indicate separation include:

-Living separately

-Sleeping in different rooms/beds

-Ceasing to provide domestic services for one another (e.g. cooking, cleaning…)

-Separating your finances

-Lodging any forms with government agencies informing them of their separation

-Ceasing to have an intimate relationship

-Awareness of your friends and family that you and your spouse have separated

 

Separation under one roof

It is possible to be separated from your spouse even if you continue to live together. In the event that you and your spouse are separated under one roof, you will need to provide affidavits that establish this. (For more information about what an affidavit is see- http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/forms-and-fees/court-forms/form-topics/affidavits/)

If you and your spouse are joint applicants, you must both provide affidavits. If you are applying alone, you and an objective third party (like a friend or family member) must provide affidavits affirming your separation.

Reconciliation

This can only have occurred once and for a maximum of three months or a number of times so long as it is less than three months.

Marriages of less than two years

If your marriage lasted for less than two years, it will be necessary to attend counselling in order to establish whether there is a possibility of reconciliation prior to applying for a divorce. Alternatively you are able to seek permission from the Court to apply for a divorce without counselling.

Applying for a Divorce

To get divorced you will need to file a Divorce Application at the Federal Circuit Court. You can access a do-it-yourself Divorce Application Kit at http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/forms-and-fees/court-forms/diy-kits/kit-application-for-divorce.

You can apply for a divorce as a sole applicant, or with your spouse as joint applicants (for more information see, Joint application and Sole application).

Before you can file your Application for Divorce, you will need to sign it in the presence of a Justice of the Peace or a solicitor. After you have signed your completed Divorce Application you will need to file it at the Registry of the Federal Circuit Court. You will need to present:

-Your Divorce application with two photocopies

-A copy of your marriage certificate

If you are not an Australian citizen by birth or descent, you will need to provide proof of permanent residency or citizenship (e.g. Australian citizenship certificate, passport, visa or other proof of permanent residency or citizenship) if you have already filed documents with the court regarding other family law matters. If this is the case, there is no need to file another copy, as the court will already have a copy of your marriage certificate on file. You should also have received a file number from the Court, which you should insert on the upper right hand corner of the application.

When your divorce application is filed at the registry, they will keep the original application. The two photocopies of your application will then be returned to you, stamped with the court seal. You will also receive a file number and a date and time of a court hearing, which will be written on the top right hand corner of your application.

Filing a Divorce application electronically

You can file your application online through the Commonwealth Courts Portal. (http://www.comcourts.gov.au) For more information on filing your Divorce Application electronically, see the ‘Guide to using the Commonwealth Courts Portal’ on the Family Courts website. (http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/reports-and-publications/publications/ccp/guide-to-using-the-commonwealth-courts-portal)

Fees associated with lodging an application

The fee for filing your divorce application is $845, which must be paid at the time the application is lodged. You can apply for a reduced fee of $280 if you are on a pension or have a health care card. If this is the case, you must file an ‘Application for Reduction of Payment of Divorce of Decree of Nullity- General.’

If you are suffering financial hardship, you must file an ‘Application for Reduction of Payment of Divorce or Decree of Nullity- Financial Hardship.’

Joint application

If you are filing a joint application with your spouse, you are both applicants. Filing a joint application is easier than filing a sole application because you will not need to attend court, even if there is a child under the age of 18 involved. (For more information on children in divorce proceedings, see Children). However, in order to file a joint application you need the cooperation of your spouse.

Sole application

If you lodge an application without your spouse, you will be the applicant and your spouse will be the respondent. Applying for a divorce alone raises a number of issues. Crucially, after filing the documents with the Federal Circuit Court you must then arrange for one of the sealed and stamped copies of the Divorce Application to be served to your spouse. Proving that your spouse has been served with a copy of the divorce application is often one of the most difficult things to prove in a divorce proceeding. The application can be served to your husband in two ways: by post or by hand.

Service by post

Service by post is an easy and cheap way to serve your spouse with your Divorce application but it requires your spouse’s cooperation. If your spouse will accept service of your Divorce Application by post, you will need to send them:

-The sealed Divorce Application (with the Notice of Application for Divorce attached to the front page)

-Any other documents you filed at the Court (except the marriage certificate)

-The brochure ‘Marriage, Families and Separation’ given to you by the Court

-An Acknowledgement of Service form

-A stamped, self-addressed envelope

-A letter asking your husband to sign the Acknowledgement of Service form and return it to you

The Acknowledgement of Service form is not an agreement with the content of your Divorce application, just an acknowledgement of the fact that he has received the application and the brochure. This signature does not need to be witnessed by a JP or a solicitor.

Once you have received the Acknowledgement of Service form back from your spouse, you will need to complete an ‘Affidavit of Service by Post,’ indicating that you recognise your spouse’s signature. A JP or solicitor must witness this. The witness must also complete the attached Annexure note. You must then, attach this to the Affidavit of Service by Post and file them and a photocopy of each at the Registry prior to the hearing date.

Service by hand

Alternatively, you can arrange for your Divorce application, the acknowledgement of service form, and the brochure to be served to your spouse personally by hand. You cannot serve the Divorce Application to your spouse yourself. If you can afford it, you can get a professional process-server to do this. If you cannot afford a process-server, you will need to find a friend or relative over the age of 18 who is prepared to serve the Divorce Application for you.

To serve the document to your spouse, the server must identify your spouse (either by knowing him personally or by using a photograph/asking questions). The documents must then be handed to your spouse and the server must ask him to sign the ‘Acknowledgment of Service ‘ form. If your spouse refuses to sign the form or accept the documents, the server can put them down, making it clear that they are serving a Divorce application, and tell your spouse when and where the Court hearing will take place.

After serving the documents to your spouse, the server will then need to complete an Affidavit of Service by hand in front of a solicitor or JP. They will also need to attach any documents that helped to identify your spouse. The solicitor or JP will also need to complete an Annexure Note on the Acknowledgement of Service form.

After Serving the Documents

If your Husband signed the ‘Acknowledgement of Service’ form, and you recognise his signature, you must complete an ‘Affidavit Proving Signature (Divorce)’ form, also signed in front of a JP or a solicitor. If your spouse refused to sign the ‘Acknowledgment of Service’ form, it will not matter as long as there is sufficient information in the server’s ‘Affidavit of Service by Hand,’ establishing that your spouse is in fact the person whom they have served.

You must take a copy of all service forms and file them at the Court Registry.

If your spouse is in Australia, you will need to serve the Divorce application at least 28 days before the hearing. If your husband is overseas, the Divorce application must be served at least 42 days before the hearing. If you don’t serve the documents with enough time, the registrar will be unable to hear your case on the assigned date and it will have to be adjourned unless your spouse is willing to give written evidence demonstrating that he is happy for the hearing to continue regardless.

If you can prove to the Court that you have taken all reasonable steps to serve the documents to your spouse without success, you can apply to the Court for either Substituted Service or Dispensation of Service.

Substituted Service- Allows you to serve the application to a third party who the Court is satisfied will bring the application to the attention of your spouse. (E.g. a relative, or close friend)

Dispensation of Service- allows you to dispense with service.

 

Children

If you have children under the age of 18, you will need to provide information to the court about you and your spouse’s relationship with every child treated as a member of the family at the time of separation. This includes biological children as well as stepchildren, adopted children and any other children treated as a member of your family prior to the separation. You will need to provide information about the time spent and communication with the child/children, financial support, as well as the health and education of each child.

What is the difference between Divorce applications for Divorce and Parenting Orders?

Giving information about whom a child lives with and when the child sees the other parent in a Divorce application does not mean that the court makes a parenting order when it grants the divorce. You need to apply separately for parenting orders. See the Centre’s fact sheets on Parenting Orders in the Family Court and the Federal Circuit Court.

Response to an Application for Divorce

Your spouse is entitled to file a response to Divorce. However, your spouse can only stop the Divorce application from proceeding by claiming that you have not been separated for 12 months or that the court does not have jurisdiction over the divorce (for example because you and your spouse are not Australian citizens, or do not live in Australia).

Attending Your Hearing

You may not be required to attend your Court hearing. You will need to attend your hearing where:

-It is a sole application and you have children under the age of 18

-Your husband has filed a Response

-There are special circumstances requiring further evidence (e.g. you have applied for substituted service or dispensation of service)

After your Hearing

If everything goes smoothly at your hearing, the Registrar will announce your order for divorce. The divorce will come into effect one month and one day after the hearing date.

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