If you haven’t been through a Divorce before, here are 10 things you need to know. This blog applies only to applying for a Divorce, service of the documents and appearing in Court. See elsewhere on this site for information about parenting and property matters.
1. First things first
There are 3 criteria for applying for a Divorce in Australia. First, you must, of course, be legally married to your spouse, either in Australia or, if married overseas, the marriage must be recognised by the government of that country. Secondly, you must be an Australian citizen, either by birth or naturalisation, or you are resident in Australia – that is, you have been living here for the previous 12 months, or you are domiciled in Australia, that is, you consider Australia your home, even though you may be living overseas. And thirdly, you must have separated and be living separately and apart from your spouse for at least 12 months before you file for Divorce.
2. What does “living separately and apart” mean?
Well, obviously, living in separate residences. But you can also apply for a Divorce if all, or part, of the 12 month separation period was spent under the same roof as your spouse – maybe because neither of you could afford to, or was willing, to move out. In that case, the person applying for the Divorce does a short affidavit, explaining the living conditions – that you are sleeping in separate bedrooms, you don’t go out together socially, or have joint friends or family over for social visits. Who does the cooking, washing and cleaning? You will also need a short affidavit, from anyone over 18 (it can be an adult child), saying they have been to the house and have seen those arrangements. That person usually does not have to go to Court. Those affidavits are filed at the same time as the Divorce Application.
3. What goes into the Divorce Application?
You and your spouse’s basic information – date and place of birth, address, phone and email details and information about any children under 18. The Court wants to know where the children are living, how often you and your spouse see them, their health and education.
4. Filing the Divorce Application
In these COVID days, you can’t file the Divorce Application with the Court in person or by mail. You need to log on to the Federal Circuit and Family Court of Australia (FCFCOA) electronic Portal to file your documents. The Court filing fee is presently $940, but $310 if you have a Centrelink card. You file your completed Divorce Application, a copy of your Marriage Certificate and, if you are a naturalised citizen, a copy of your Naturalisation Certificate, and affidavits if you have been living under the same roof. The hearing of your Application will be listed by the Court for 2 to 3 months after you file it.
5. Can my partner and I file a Joint Application for Divorce?
Yes, and many people do. It saves having to serve your Application on your spouse. If you both have Centrelink cards, the $310 filing fee applies, but if one of you doesn’t, the $940 has to be paid.
6. Serving the documents on the other party
Your spouse needs to know you have issued a Divorce Application. This can be done by anyone over 18 (but not you) handing a copy of your Application and any affidavits, sealed by the Court, to your spouse. That person then signs an Affidavit of Service. Your spouse is asked by the person serving the documents to sign an Acknowledgement of Service, which is just a receipt that they got the documents. You then sign an Affidavit of Proof of Signature, to say that is your spouse’s signature. You can also do this through a process server, or through the mail – in that case you also sign an Affidavit of Service by Post. If your spouse might not be willing to sign the Acknowledgement, the person serving can use a photo to identify your spouse. You then file those service documents on the Court Portal. This can all get a bit confusing. There is a Divorce Kit and a Service Kit on the FCFCOA website that can help. Service is not necessary if you and your spouse are making a Joint Application for Divorce.
7. Problems with service
If you aren’t able to have your spouse served personally or by mail – perhaps you don’t know where they are, either in Australia or overseas, service by email or social media may be accepted by the Court. Generally, the Court wants to be satisfied that the documents have come to your spouse’s attention. It may be necessary to ask the Court for an Order for Substituted Service on another person who knows where your spouse is. It’s a good idea to seek the help of an experienced Family Lawyer if you have to go down that path.
8. Do I have to go to court for the Divorce Hearing?
The short answer is Yes, if you have children under 18 and No if you don’t. If there are children, the Court Registrar, who conducts the hearing, will ask you whether the arrangements for the children are as set out in your Divorce Application.
9. What happens at Court
Your case will be listed during a session of about 1 ½ hours. If you are going to Court, arrive about 10 minutes before the scheduled time and give your name to the Court Officer. When your case is called, you go to the Bar Table and tell the Registrar your name and that you are the Applicant Wife or Husband. So long as the service documents have been filed and there are no problems with your Application (make sure the names on your Application are exactly the same as those of the Marriage Certificate), the Registrar will ask you about the children and grant the Divorce. While you may be waiting a while to be called, the actual Divorce Hearing only takes about 5 minutes. It’s unlikely your spouse will attend Court. If they do, and they object to your Application, for example, because they say you haven’t been separated for 12 months, the case may be adjourned so they can file a Response to your Application.
10. So, that went well – I’m divorced – what happens next?
A month and a day after your Court date the Divorce will become final, and you and your spouse will receive a Divorce Order. You cannot remarry until you get that. There will be a notice on the back of the Order, saying that you must make any application for a property settlement or for spousal maintenance within 12 months of the date of the Divorce Order.
And that’s it. Many people do their own divorces, but if you feel it may all be a bit too much to cope with, one of our highly experienced and friendly Family Lawyers at Tonkin Legal Group are there to help.