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; however 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 regard Australia as their home and intend to live here indefinitely; or
- that they are an Australian citizen; or
- that they ordinarily live in Australia and have done so for the previous 12 months.
- 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:
- if there are children of the marriage under the age of 18, 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.
Where to apply
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 date that parties become legally divorced.
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 in Victoria or any other legal matter contact Armstrong Legal’s family lawyers on 1300 038 223 or send us an email.
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