Applying for a Divorce in Victoria
Obtaining a divorce order is typically one of the simpler aspects of the Family Law process. Before the Court will make an order for divorce, it must be satisfied as to the following matters:
- That the parties were legally married. This is proven by providing a copy of the marriage certificate to the Court. If the marriage certificate is not in English, it must be translated by an appropriately qualified translator.
- That the marriage has irretrievably broken down. This requirement is satisfied with evidence that the parties have lived separately and apart for at least 12 months before the application for divorce is filed. Note that if the parties have been separated but remained living together in the same property (known as being “separated under the one roof”) it is still possible to obtain a divorce, however corroborating evidence is required, including from third parties such as friends or neighbours.
- That there are satisfactory arrangements in place for any children of the marriage under the age of 18 years. This does not necessarily require parenting orders to be in place or an agreement between parents about appropriate parenting arrangements.
- That the Court has jurisdiction to make the divorce. This requires either party to satisfy at least one of the following criteria:
- That they regard Australia as their home and intend to live here indefinitely;
- That they are an Australian citizen;
- That they ordinarily live in Australia and have done so for the previous 12 months.
- That both parties of the marriage are aware of the application for divorce and Court date. This is typically proven by the party who has filed the application (the applicant) serving it on the other party (the respondent) and proof of service being filed with the Court. Usually, the applicant must sign and file an affidavit of service and annexing an acknowledgment of service signed by the respondent.
Spouse parties can either file a sole application for divorce, or a joint application. As the names suggest, a joint application requires both parties’ agreement, whereas a sole application can be filed by one party only.
There are important practical implications arising from whether a sole or joint application for divorce is filed:
- If there are children of the marriage under the age of 18 years, the applicant who has filed a sole application for divorce must attend the Court hearing. If the parties have filed a joint application, attendance at Court is not usually required.
- With a joint application for divorce, documents proving service to the Court do not need to be completed and filed.
- The respondent is able to file a response to divorce if they do not agree with the contents to the application for divorce.
An application for divorce must be filed in the Federal Circuit Court of Australia. In the Melbourne Registry of the Court, it takes approximately six to eight weeks for the divorce application to be listed for a hearing before a Court Registrar. If the legal requirements set out above have been satisfied, a divorce order will be made on that date.
The divorce order takes effect one month and one day after the date of the order. It is not until this point that parties become legally divorced.
Obtaining a divorce has the legal effect of bringing your marriage to an end only. It does not determine the parenting arrangements for your children or the division of matrimonial property.
WHERE TO NEXT?
Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?