divorce

The court must be satisfied that the relationship has broken down irretrievably. A period of separation of 12 months immediately before filing the application satisfies the court of this fact. A couple may be separated and still live together provided they satisfy the court that they are not living as husband and wife. That is to say, their relationship has reduced to sharing accommodation. If a couple reconcile during the period of separation, the separation does not have to recommence provided any reconciliation or reconciliations do not total more than a total of three months and those three months do not count as part of the period of 12 months of separation. The Court is normally satisfied that separation has taken place by the applicant swearing as to the separation on the application for divorce.

The court will not grant a divorce in Australia unless it is satisfied that appropriate arrangements for any children are in place. That does not mean those arrangements are formal, nor does it mean that there is no dispute, but rather that at the time of the divorce hearing, the children are being appropriately cared and provided for. We have provided further information and advice on Australian child custody and divorce information here.

Divorce is a relatively simple legal process, provided that all the statutory requirements can be met. The Federal Circuit Court (Federal Magistrates Court) is the appropriate Court in which to bring an application for divorce and on divorce list days the Court usually grants approximately ten divorces per hour. You can glean from this that the Court spends approximately five to six minutes in hearing each uncontested divorce application.

• In order to qualify for a divorce, the Court must be satisfied as to the following matters:
• That you have been validly married – This is usually done by providing the Court with an original or a certified copy of your marriage certificate. Where the certificate is in another language, a certified translation of that document can be used;
• That it has jurisdiction to grant the application – jurisdiction is usually established by citizenship or what the Court refers to as “domicile”. That means in cases where the applicant or the other party is not an Australian citizen, they are either a resident of Australia, have lived in Australia for at least 12 months or consider Australia to be their home. This is usually established by the information sworn on the application for divorce, however, occasionally supporting documents such as a copy of your passport may be required;
• That the marriage has irretrievably broken down – This is shown by a period of 12 months of separation. Where you and your spouse tried to reconcile for three months or less and then separate again finally, you must extend that period from the initial date of separation by the amount of time which you were reconciled. If your reconciliation lasted for more than three months, you must start the 12 month period of separation all over again when you finally separate. If you were separated under the one roof, an affidavit from you and/or someone else verifying that you are separated, while still living together, may be required;
• Service – The Court must be satisfied that the other party to the divorce has been served with a copy of the application at least 28 days prior to the divorce hearing or, if they live oversea,s 42 days prior to the date of the divorce hearing; and
• That appropriate arrangements have been made for any children of the relationship – This is usually established on the information contained in the sworn application for divorce.

You are not required to attend Court in cases where there have been no children of the relationship or if it is a joint application; however, you are of course welcome to attend if you would like to do so.

Given that the divorce process is quite straight-forward we would invite you to make the application yourself, unless you would prefer us to do it on your behalf. An easy to follow “Do It Yourself Divorce Kit” is available from the Federal Magistrates Court website www.fmc.gov.au. We point this out, not because we would not like to assist you with your Divorce, but because we feel it fair to make you aware of the opportunity to save money where this can be done.

Upon filing the application form, in triplicate, a hearing date will usually be allocated approximately eight weeks from filing. On filing of the divorce application, a sealed copy is returned by the court. That copy must be personally given to the respondent, by someone who is over the ager of 16 years other than the applicant, at least 28 days before the divorce hearing. That person must then swear an affidavit to the effect that the application was given to the defendant, when and what was said. The reason for this is so that the court can be satisfied that the respondent is aware of the application and the hearing date.

After being satisfied of the above matters, the court will generally grant a decree nisi which is stage 1 of a divorce. Stage 2 is the decree becoming absolute. A decree will generally become absolute 1 month and 1 day after the decree nisi was granted. Service can be affected by other methods, however, personal service as described above, is the most common.

At Armstrong Legal we have specialist divorce lawyers to assist people through the difficulties associated with the breakdown of relationships and issues in relation to marriage breakdown and divorce.

Time frames

The timeframe for the granting of a divorce is usually approximately 12-13 weeks from the date of filing the application. Upon filing the application for divorce, the court will provide a hearing date approximately eight to nine weeks after the date of filing. This is to ensure that you have adequate time to serve the application and still give the other party the required 28 or 42 days notice of the hearing date. From the date of granting of the divorce, a further 1 month and 1 day must elapse before the divorce becomes final. After the divorce becomes final, the court will issue by post a sealed certificate of divorce. It is a good idea to wait until after you receive the divorce application before planning to re-marry (if applicable).

What if you are unable to locate your spouse?

Every effort should be made to locate your spouse to serve the application for divorce. If the application cannot be served, an application to dispense with service or an application for substituted service can be made. The court will then order that either your spouse is aware of the divorce hearing by virtue of your efforts to serve the application or that your spouse will be deemed to be aware of the application if you have carried out certain steps to serve it. The requirements may change from case to case and we can advise further, if required.