Your Application for Divorce must be filed in a registry of the Federal Circuit Court. In Queensland, registries are located in Brisbane, Southport, Ipswich, Toowoomba, Cairns, Townsville, Mackay, Rockhampton, Bundaberg, Hervey Bay and Maroochydore. Your application must be accompanied by the filing fee and a copy of your marriage certificate and translation if applicable.
Once your application has been filed it must be served on your spouse (unless you are filing a joint application) at least 28 days prior to the hearing (or 42 days prior if your spouse is living overseas). You cannot serve the application yourself, service must be carried out by a third party. Our Queensland divorce lawyers can arrange service of your application for you at minimal cost. In cases where the other party cannot be located a special application will need to be made asking the Court to do away with the requirement for service.
The Federal Circuit Court of Australia has jurisdiction to deal with dissolution of marriage under Part VI of the Family Law Act. The granting of a divorce only deals with the ability of each party to remarry in the future and does not determine issues of financial support, property distribution or the arrangements of the parties’ children. Each of those issues can be dealt with separately through either the Federal Circuit Court of Australia or Family Court of Australia. Divorce simply recognises that the marriage has ended.
Filing And Serving Your Application
The hearing of your application will generally occur in 2- 3 months time from the date it is filed to allow you sufficient time to serve the other party.
Effect Of A Divorce Order
Following the Divorce Hearing and a Divorce Order being made on that date, the Divorce Order does not come into effect for a further one month and one day period. It is after this time that you and your now former spouse are able to remarry in the future. In order to remarry you are required to prove that your divorce has been approved and will be required to show the original or certified copy of the Divorce Order prior to being married in the future.
Following the Divorce Order coming into effect (one month and a day after the Order is made at the Divorce Hearing), each of the parties then have one year to resolve matters relating to property settlement and financial support (spousal maintenance) between them. In the event the parties seek to agitate these issues after the 12 month period has expired they will require the Courts permission (leave) to do so.
If you are unsure about what a Divorce Order means for you or whether or not you agree to a Divorce Order being made you should seek independent legal advice in relation to divorce.
Service Of The Divorce Application
Upon filing your Divorce Application you are required to serve your spouse to advise them that you are seeking a divorce from them. You are not able to personally serve your spouse, however you may arrange for a Process Server or third party to attend upon your spouse to serve them with the Divorce Application. The person serving the Application must then complete an Affidavit of Service and request that your spouse complete an Acknowledgement of Service, which is then required to be filed with the Court. You may also serve your spouse by post as long as they return an Acknowledgement of Service. You would then complete an Affidavit of Sevrice by Post and Affidavit of Proof of Signature which would also be filed with the Court.
The Court must be satisfied as to the other spouses’ knowledge of the Divorce Application by being served 28 days prior to the Divorce Hearing, and 42 days if they reside overseas. In the event your spouse has not been served within this timeframe, the hearing of the Divorce Application is likely to be adjourned for the time to pass.
Should I File A Response To Divorce If I Disagree With The Content In The Divorce Application?
Upon being served with a Divorce Application, the responding party is permitted 28 days to consider whether or not they object to the filing of the Divorce Application. Given that divorce in Australia is a “no fault” system, there are very limited circumstances in which a party may oppose a Divorce Order being made. The main circumstance is that the parties have not been separated for a period of 12 months prior to the filing of the Divorce Application.
Why Is The Date Of Separation Important?
The date of separation may be important to parties when they are disputing separation following the breakdown of the marriage and are involved in litigation surrounding the division of property. In the event that the separation that you assert is still greater than 12 months since the date of filing of the Divorce Application you may file a Response to divorce to put your facts as you assert on the Court record. The Registrar on the date of the Divorce Hearing is unable to make a finding of fact given the different evidence before them, however is still able to make the Divorce Order given that the Application was filed a period of 12 months and a day after either party’s version of the date of separation.
In the event you dispute factual matters contained within the Application for Divorce but do not object to the Divorce Order going through or being made by the Court, you may also file a Response to Divorce and outline the facts that you dispute only.
Joint Divorce Applications
In order to avoid issues relating to service or the requirement of service you may file a Divorce Application jointly with your spouse. This would result in you both completing the form and executing the Application properly at the back. The Divorce Application is then filed at the Court in the same manner as a sole Application for Divorce. It is usual for joint Divorce Applications to proceed more quickly through the Court system as there are no issues in relation to service and parties are generaly not required to attend at the Divorce Hearing.
Do I Have To Attend The Divorce Hearing?
If there are no children of the marriage under 18 you are not required to attend the Court Hearing. This applies for both sole and joint Applications for Divorce.
If you have made a sole Application for Divorce and there is a child under the age of 18 years you are required to attend the Court Hearing unless circumstances prevent you from attending. It may be appropriate that you make an Application to attend by Electronic Means in those circumstances or have a legal representative attend on your behalf.
In the event you have made a sole Application for Divorce but have also made an Application in a Case seeking a dispensation or substitution of service then it is important that you attend at the Hearing to make submissions as to why the Court should grant your Application in relation to service.
In the event a Response to Divorce has been filed opposing the Application for Divorce the Respondent must appear in person on the Hearing date. In the event the Respondent has filed a Response to Divorce but does not oppose the Application for Divorce being granted then there is no need for the Respondent to attend the Hearing.
Filing An Application For Divorce
All Divorce Applications must now be filed online and they will be dealt with in the most local Registry. In Queensland, registry’s are located in Brisbane, Cairns, Rockhampton and Townsville.
At present the filing fee for a Divorce Application is $900. In the event you are eligible for a reduced fee by way of evidence of a Healthcare Card or Department of Veteran Affairs Card, the filing fee is a reduced rate of $300.
Can I Do It Myself?
Divorce applications are generally fairly simple and many people choose to file their own applications. The Federal Circuit Court provides a step by step guide to the application process which can be completed online via the Federal Circuit Court website. If you would prefer to have a divorce lawyer handle the application process and court appearance for you, Armstrong Legal’s Brisbane family lawyers are here to assist.
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?