People often don’t realise that there are a number of requirements you must meet and procedural aspects to follow when you decide to divorce. This article explains the three key stages of the process.
The first step is to file a Divorce Application (“the Application”) with the Federal Circuit Court of Australia.
In order to do this, you and your spouse (former partner) must have lived separately and apart for a period of no less than 12 months. The Applicant, whether that be you or your spouse, must be an Australian citizen, domiciled in Australia or a resident of Australia for at least one year prior to the filing of the Application
If you have been married for less than two years, you and your spouse must have first considered a reconciliation with the assistance of a suitable person, such as a family counsellor, prior to filing the Application. The two year period is calculated from the date of marriage to the date of the Application.
The Application can be completed jointly, where both you and your spouse sign the Application, or it may be completed by one party independently of the other.
The Application can be completed online via the Commonwealth Courts Portal website. At the time of completion, you will also need to pay a filing fee of $900, unless you qualify for the reduced fee of $300. Once the Application is lodged with the Court, the Court will notify you of the Court date.
For the purpose of calculating the 12 month period of separation, the day on which separation occurred is ignored. For example, if separation occurred on 8 October 2018, the Application can be filed the following day, one year later i.e. on 9 October 2019.
Physical separation is not required as evidence of the marriage breakdown. There are examples where the parties have been deemed to have lived separately and apart, despite continuing to reside in the same residence.
Separation under the one roof can cause some practical problems. For example, it may be difficult to establish that separation occurred or the date when it began. For this reason, if you and your spouse have separated, but are continuing to live under the same roof during some or all of the 12 month period of separation, you will need to file an Affidavit with the Court (“the supporting Affidavit”). The supporting Affidavit (signed by you) will provide the Court with information about your separation. If your Application is a joint Application, you and your spouse each need to file a supporting Affidavit. An Affidavit from an independent third party, such as a family member, friend or neighbour, who can corroborate your position will also need to be obtained and filed with the Court.
This step only applies if the Application for divorce is not made jointly by both parties.
In the event that one party files the Application with the Court, the process below must be followed.
A sealed copy of the Application must be served on the other party (“the respondent”) together with:
Your spouse may be served with your Application by post or by a person over the age of 18, such as a family member or friend. You personally cannot serve the Application. Service within Australia must take place 28 days before the Court date. If your spouse is outside Australia, service must take place 42 days before the Court date.
If your spouse cannot be located, an Order from the Court may be sought for substituted service or for service to be dispensed with.
When your spouse is served with the Application, they are required to sign the Acknowledgement of Service form mentioned above. This document acknowledges their receipt of the Application. If serving these documents in person, the person serving the documents will need to complete an Affidavit of Service by hand and sign it before a Justice of the Peace or a lawyer.
If the person serving your spouse does not know them, then in addition to having them complete the Affidavit of Service form as above, you will need to complete an Affidavit of Proving Signature. This also needs to be signed before a Justice of the Peace or a lawyer. Both the Affidavit of Service and Affidavit of Proving Signature documents can be downloaded here.
The Affidavit of Service document, Acknowledgement of Service and Affidavit of Proving Signature must be filed with the Court, prior to the Court date. The documents can be filed via the Courts Portal.
If the Application is not a joint Application and there is a child or children under the age of 18, you will need to attend the Court hearing. If the hearing is a joint application, you do not need to attend.
Following the hearing, a Divorce Order (“the Order”) is made. It will take effect and terminate the marriage one month and one day later, unless the Court elects to reduce the period of time. This would usually only occur under special circumstances, and only if an application has been made for this by one or both parties. You will receive the Divorce Order from the Court after the one month and one day time period has lapsed.
Some parties prefer to obtain an Order before finalising financial matters with their spouse. Obtaining an Order does not automatically bring to an end the financial ties with your spouse. This is a separate process. Once the Order becomes final, you have 12 months from the date of the Order to finalise financial matters with your spouse, otherwise you will be considered to be ‘out of time’. This means that the Court will not be able to hear and determine your property settlement matter, unless an extension of time is successfully obtained.
The Family law team at Mellor Olsson are able to assist you throughout the Divorce process, including filing the Application on your behalf, serving the Application and attending the Hearing. If you require further advice about obtaining a Divorce, please contact one of our experienced Family law solicitors.
This article was written by Senior Associate, Selina Nikoloudakis.
Practice Area: Family Law