Applying for a Divorce

Applying for 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 that the couple meets certain criteria.

Criteria that need to be met

To make a divorce order, the court must be satisfied 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.
• 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, but corroborating evidence is required, including evidence from third parties such as friends or neighbours.
• there are satisfactory care arrangements in place for any children of the marriage who are under the age of 18. This does not necessarily require parenting orders to be in place or a written agreement between parents about appropriate parenting arrangements.
• the court has jurisdiction to make the divorce order. This requires either party to prove:
  • that they are an Australian citizen; or
  • that they ordinarily live in Australia and have done so for the previous 12 months and intend to continue living in Australia.
• 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 annex an acknowledgment of service signed by the respondent.

How to apply for a divorce

Spouses 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. These are:

• with a joint application for divorce, documents proving service to the court do not need to be completed and filed, as both parties have engaged in the application;
• With a sole application, the respondent is able to file a response to divorce if they do not agree with the contents to the application for divorce.

Do I need to attend a Court Hearing

• Divorce hearings are conducted electronically by phone. If you wish to attend the hearing, even when you are not required to, you can indicate this in your application. 
• You are only required to attend the divorce hearing, if:
  • The Respondent has requested to attend the hearing where there are children under 18; 
  • The Respondent files a Response to divorce opposing the application, or
  • You are applying for an order for substituted service or dispensation of service because you cannot find your spouse to serve the court documents; 

Where to apply

An application for divorce must be filed in the Federal Circuit and Family Court of Australia (FCFCA).

The divorce order takes effect one month and one day after the date of the order. It is not until this date that parties become legally divorced.

Service And Notice

Upon filing the Divorce Application, a hearing date will usually be allocated approximately eight to twelve from filing. 

On filing of the divorce application, a sealed copy is returned by the court. If you filed a sole application, that copy and associated documents 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 (if your spouse is overseas you need to serve 42 days before the divorce hearing). The person who served the document must then swear an affidavit to the effect that the application was given to the respondent, 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 effected by other methods but personal service as described above, is the most common.

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.

Timeframes

A divorce will normally be granted within 3-4  months from the date the application was filed (subject to the workload of the Court). Upon filing the application for divorce, the court will provide a hearing date approximately eight to twelve 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  finalised until 1 month and 1 day after the divorce order is made. The court will issue a certificate of divorce.

Obtaining a divorce order has the legal effect of bringing a marriage to an end. It does not determine the parenting arrangements for children or the division of matrimonial property.

If you require legal advice on applying for a divorce or any other legal matter contact Armstrong Legal’s family lawyers on 1300 038 223 or send us an email.