If your marriage has failed and you wish to get a divorce
you must make an application for divorce. While the process has many steps, if you wish to file for divorce the steps are outlined by the family court for you to follow. You can prepare the application for divorce yourself or have it completed by a lawyer to ensure it is correct.
Applications need to be made with the Federal Circuit Court under Part VI of the Family Law Act 1975. In order for you to apply for divorce you will need to provide evidence of a few things:
• There needs to have been a separation period of at least twelve months. There is no filing of separation required, but dates should be kept track of for application purposes. The court will recognize a separation as still having occurred when the couple occupies the same residence, as long as the application include affidavits confirming the separation. Separated parties under the same roof, should have separate rooms, bank accounts and present themselves as separated. If the marriage has lasted less than two years, additional requirements need to be met. As well as the twelve-month separation, couples are required to attend counseling. The counseling must discuss any possibility of reconciliation, and then a counseling certificate can be issued to include with the application. If the couple doesn’t wish to attend counseling, this can sign an affidavit stating why.
• As the application is lodged with the Australian Federal Circuit Court, the applicants need to be Australian and are going to remain living in Australia. To meet this requirement, you need to be a citizen by birth or descent, have been granted citizenship or lived in Australia continually for a period of at least twelve months. consider Australia to be their home and intend to remain living there. You will be required to prove this with documents like passports.
• To apply for divorce, you will need to provide proof that you were married in the first place by supplying your marriage certificate or a copy of it.
• Finally, the divorce application must have at least one of the spouses state that the marriage is broken down without any hope of reconciliation.
The divorce can be applied for by an individual or by both parties.
If the couple applies together, application costs can be shared. If the application isn’t a joint one then, the spouse filing for divorce will be required to serve the other party with documentation. This includes a copy of the filed divorce application, the brochure titled ‘Marriage, Families and Separation’ and an Acknowledgement of Service (divorce). Your spouse can be served by mail if you think they will willingly return the Acknowledgment of Service. If not, they should be served in person. You cannot serve the person yourself. An adult (18 years or older) must serve the other party. If you don’t want to have family or friends involved there are agencies available that will serve legal documents for you. The spouse’s lawyers can also be served if they will accept the documents. If the spouse is in Australia the must be served a minimum of 28 days before the hearing date. If they are not in Australia, then the service must take place at least 42 days before the hearing date.
Any details regarding living and financial arrangements, education, and custody of children under 18 must also be included in the application, and copies should be made. A copy of the application must be submitted with the original and an additional copy kept by the applicant. If attending the hearing it is a good idea to have a copy of the application with you.
A hearing date will be set once the required application documentation is submitted. Attendance of the hearing is only required by sole applicants that have children under eighteen or respondents that oppose the application. It is possible that if you are required to attend but cannot, that arrangements for phone or video attendance can be made. It is important to take note of the date and be aware of the minimum time allowed to serve if not filing a joint application. It is important to note that the division of property or any decisions regarding parenting arrangements are not discussed at this hearing.
If the court is satisfied that the application has provided evidence that the couple is eligible and that there is no chance of reconciliation, the divorce will be granted. The divorce is then final one month from the hearing date.
Do you have questions about divorce or need help with an application? Contact one of our Family Law Solicitors at CM Lawyers for further advice.