Proof of Marriage
You must first satisfy the court that you have a valid marriage. A marriage certificate, with a sworn translation into English, if necessary, will suffice. If you do not have a copy of a marriage certificate or require translation, our divorce lawyers can usually arrange that for you. If no marriage certificate is available, the court may require you to give some alternate evidence of the marriage prior to granting divorce.
The court only has power under cection 39(3) of the Family Law Act 1975 to grant a divorce if either party:
- regards Australia as home;
- intends to live in Australia indefinitely;
- has lived his or her whole life in Australia;
- is an Australian citizen; or
- ordinarily lives in Australia and has lived in Australia for the 12 months prior to the making of the application for divorce.
Divorce And The Breakdown Of Relationships
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 can still reside under one roof and be considered separated.
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.
Satisfactory Arrangements For The Children In Divorce Law
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: Can I Do It Myself?
Divorce is a relatively simple legal process, provided that all the statutory requirements can be met. The Federal Circuit Court is the appropriate court in which to bring an application for divorce and on divorce list days the court usually grants divorces in a matter of minutes.
Qualifying for a Divorce
Before the court will grant a Divorce Order they must be satisfied that:
- you were legally married – This is usually proved 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;
- it has jurisdiction to grant the application jurisdiction which 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. The application form or your passport normally sufficies as evidence.
- that the marriage has irretrievably broken down – This is shown by a period of 12 months of separation.
- 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 overseas 42 days prior to the date of the divorce hearing; and
- 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.
Service And Notice
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 age 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.
A divorce will normally be granted within 12-13 weeks from the date the application was filed. 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. The divorce order is not granted finalised until 1 month and 1 day after the divorce order is made. The court will issue a certificate of divorce.
If you plan to remarry 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.
At Armstrong Legal we have specialist divorce lawyers available on 1300 038 223 or via email who can assist people through the difficulties associated with the breakdown of relationships and issues in relation to marriage breakdown and divorce.