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How to apply for Divorce in Australia

How to apply for Divorce in Australia
Service:

What are the necessary steps in applying for divorce in Australia?

An “Order for Divorce” is a document obtained from the Court that legally terminates a marriage. Obtaining one is the only way to conclude a marriage. The process of applying for an Order for Divorce (done in the Federal Circuit Court of Australia) is not common knowledge. Below is a summary of critical aspects to an Application for Divorce, which is a technical process and is document driven.

Jurisdiction

In Australia, Applications for Divorce are usually dealt with by the Federal Circuit Court of Australia (the Family Court of Australia can grant an Order for Divorce, but rarely does). To apply for a divorce, you must:

  • meet certain criteria (explained immediately below)
  • complete an Application for Divorce
  • file the Application with the Court
  • pay the filing fee and
  • serve the Application on your spouse (unless you are making a joint application).

Criteria

You are only entitled to apply for a divorce in Australia if you or your spouse have been separated (see definition below) for 12 months and you or your spouse:

  • regard Australia as your home and intend to live in Australia indefinitely; or
  • are an Australian citizen by birth, descent or by grant of Australian citizenship; or
  • primarily reside in Australia and have done so for 12 months immediately before filing for divorce, ­and
  • the marriage has broken down irretrievably and there is no reasonable likelihood of the husband and wife resuming married life.

The Jargon and the usual pitfalls

Separation
Separation has occurred when at least one spouse regards the marriage as over and has communicated this to the other spouse. You can prove separation by:

  1. ceasing cohabitation or at the very least sleeping in separate beds; and/or
  2. operating separate bank accounts; and/or
  3. informing family and friends that you regard the marriage as “finished”.

Separation under One Roof
It is not necessary for you and your spouse to reside in separate homes for separation to occur. When parties separate but continue to reside together, it is commonly referred to as ‘separation under one roof’. If you have separated under one roof, and have not lived in different households for at least 12 months, you will be required to complete an additional document. A short “Affidavit” setting out the precise details is required for the Application for Divorce to be granted.
The party applying to the Court must warrant to the Court that there is no reasonable likelihood of the parties resuming married life.

Sole vs. Joint Applications
If you apply for a divorce together with your spouse, it is a “joint application” and you and your spouse are both applicants. If you apply for a divorce by yourself, you are a sole applicant and your spouse is the respondent.

If you apply solely, once the Application for Divorce has been filed at Court, you must arrange for a sealed copy of the Application to be served on your spouse. Your spouse may be served by post if they are willing to return a signed Acknowledgement of Service, otherwise personal service must be arranged. You cannot serve the Application on your spouse personally, but any other person over the age of 18 years may serve the document on your behalf. The most effective way of having your spouse served is to engage a process serve to organise and effect service for you.

If I can’t find them?
There is a special procedure for obtaining an order for ‘substituted service’ or dispensing with the requirement for service altogether and we can assist in this regard if you require.

Proof of the Marriage
You are required to file a copy of your Marriage Certificate with your Application for Divorce. If you cannot obtain a copy of your Marriage Certificate, you must file an Affidavit setting out the reasons why you cannot obtain a copy. If your Marriage Certificate is not in English, you must obtain an English translation of the document and file it with an affidavit from the translator.

If there are Children of the Marriage
If there are children under the age of 18 years of the marriage or if a child of one of you was treated as a member of your family when you and your spouse separated, it is necessary for you to include details about the future and current living arrangements, education, health and financial support of the child (ren) in your Application.
Further, if there are children aged under 18 years, one of the parties and/or their legal representative must attend Court on the day of the divorce hearing.

If there are not Children of the Marriage
If there are no children under the age of 18 years of the marriage or, there is no child of either of you that was treated as a member of your family when you and your spouse separated, then neither spouse is required to attend the hearing.

Filing Fees
The Court’s filing fee for an Application for divorce varies. It is currently $845 (as at 01/04/2016). Depending on your individual circumstances, you may be eligible to a reduced filing fee in special cases which we can advise you on.

Preparation of application for divorce

Our Family Law Team is very experienced in the preparation of Applications for Divorce. Our Fixed Fee for assisting parties in applying for divorces is $925 plus GST plus disbursements. Such disbursements will include the Family Court Filing Fee of $845.

Our fee covers the following:

  • conference with you to complete and sign the Application for Divorce
  • arranging personal service of the Respondent Spouse
  • attending the Hearing of the Application for Divorce
  • reporting to you.

If you haven’t divided property

Once a Divorce Order takes effect (which is one month and one day after the order is made), you then have a period of 12 months in which you are entitled to apply to either the Federal Circuit Court of Australia or Family Court of Australia for property Orders dividing up between you the assets and finalising the financial relationship between you and your former spouse. If you do not apply within this period, you must obtain “leave” of the Court to apply out of time. To obtain such leave you need to demonstrate special circumstances to the Court. Applications for Divorce are often done as the “last step” after commencing property proceedings or reaching final property settlement as the Court does not mandate the Order of divorce /property/children and the Court doesn’t require all of them to be done at all.

Case Study:

You may recall “The Blakes”, the family introduced in previous newsletters. 

Unfortunately Max (Kate’s nephew) & Carrie O’Brien have decided to seek a divorce; they have been unhappy for a long while and see going their separate ways as the best solution for the whole family. Their relationship is still reasonably amicable for the sake of their children as they are both very involved.

After much discussion between them, they agreed that their children will live 8 days with Carrie and 6 nights with Max each fortnight. For the moment, Max is going to continue to reside in the guest room at their home until he can get enough funds together to set up a house elsewhere.

An unfortunate reality of many separations – particularly in Sydney is that 2 homes are unaffordable. Max and Carrie want to know what the necessary steps are to finalise their divorce as quickly and as cheaply as possible.

The aspects of an Application for Divorce for Max and Carrie are as follows:

  • To be eligible for a Divorce Order, Max and Carrie have to wait until they have been separated for 12 months (i.e. 12 months after they decided to end their marriage).
  • They will also have to indicate to the Court, in the Application, that there is no reasonable likelihood that they will resume their married life.
  • As Max and Carrie are living separated under one roof, it will be necessary to prepare a short Affidavit from either Max or Carrie confirming that they are separated, that Max is living in the guest room and that in all other respects they have ended their marriage.
  • As Max and Carrie have decided to end their marriage amicably, they will apply jointly to avoid the necessity to have one of them personally served with the Application for Divorce.  Filing jointly will help achieve Max and Carrie’s aim of finalising their divorce proceedings as quickly and as cheaply as possible.
  • As Max and Carrie have children under 18 years, it will be necessary for one of them and/or a solicitor acting on their behalf to be in attendance at the hearing of the Application for Divorce.
  • They have each sought advice on how to divide up their assets from lawyers and have prepared a parenting plan – each are to be negotiated (and will be the subject of future newsletters).

Meet The Blakes

Contact a member of our Family Law Team if you require any assistance or further information.


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