Divorce Application Fee
In Australia, the Family Law Act 1975 provides for the legal dissolution of marriage through an application to Division 2 of the Federal Circuit and Family Court of Australia (FCFCA). The process of applying for divorce is the same in every Australian state and territory. A separated couple applies and pays a divorce application fee, which is currently $930. A hearing is typically held within nine weeks of the application, at which time the court will grant a decree nisi. A further month and one day later, the decree becomes absolute, and the court will issue a certificate of divorce.
Prior to lodging an application for divorce a person should check that they are eligible to divorce, and supply all relevant documentation, as the divorce application fee may not be refunded if the application is found to be incomplete.
Am I Eligible to Apply for a Divorce?
It may come as a surprise that not every married person living in Australia is actually eligible to seek a divorce in this country. The federal court will only grant a divorce if one spouse fulfils the residency requirements set out in section 39(3) of the Act. There are several ways that an individual can satisfy the residency requirement, including if one spouse is an Australian citizen, has lived their whole life in Australia, or has lived in Australia for at least a year and intends to remain in this country indefinitely.
Another requirement for gaining a divorce is that the marriage itself is legally recognised in Australia. When the marriage occurred in a country other than Australia, the applicant must supply a copy of the marriage certificate (with translation if necessary) with the divorce application. If a certificate cannot be provided – for instance, if it has been lost and cannot be replaced – then the court may accept alternative evidence of the validity of the marriage. Where a marriage is informal or otherwise is not recognised in Australia, an Australian court cannot grant the dissolution of the union.
In addition to citizenship and recognition of the marriage, the court must be satisfied that the marriage has irretrievably broken down before granting a divorce. Couples can fulfil this requirement by providing evidence that they have been living separately for at least a year. If a couple is separated but still living in the same household, the court must be provided with corroborating evidence that the couple is in fact “separated under the one roof”. This evidence is provided by third parties to the couple, such as neighbours or friends, who have had the opportunity to observe the status of the relationship.
It is important to note that if a couple has been married for less than two years, they cannot file for a divorce unless they have first attended couples counselling together, and considered the possibility of reconciliation. If the relationship counselling is unsuccessful, the applicant will need to attach a counselling certificate to the documentation to prove they have completed this requirement.
If there are minor children of the marriage, the court must also be satisfied that appropriate care arrangements are in place prior to granting the divorce. This can be established simply through an outline of the care arrangement in the sworn divorce application.
Can I Qualify for a Reduced Divorce Application Fee?
An applicant may be eligible for a reduced fee on their divorce application. The reduced divorce application fee is currently $310. To qualify for this discount, the applicant needs to provide documentary evidence to the court that demonstrates low income. Examples of this evidence include a government-issued health care card or pensioner concession card, or evidence of Centrelink income support payments. Minors under the age of 18, recipients of Legal Aid, prison inmates or anyone in legal detention in a public institution are also eligible for the reduced fee. Where the application is a joint one, both applicants must meet the eligibility requirements to qualify for the fee reduction.
If the applicant does not qualify under the provisions outlined above, he or she can still apply for a reduced divorce application fee in circumstances where paying the full fee would lead to financial hardship. An application for the reduced fee should only be made in circumstances of genuine hardship, as making a false statement to the Commonwealth to obtain a benefit is considered an offence.
You can fill out a divorce application yourself or employ a lawyer to help you. It is in your best interests to consult a solicitor before lodging a divorce application if you have dependant children, jointly held property, or if you have any concerns about your safety while seeking a divorce.
If you need legal advice regarding divorce applications and the costs and fees involved, please contact Armstrong Legal on 1300 038 223 or send us an email.