Divorce papers are documents that are filed with the courts to obtain a formal dissolution of marriage. It is theoretically possible for a divorcing couple to complete the dissolution of marriage without any legal assistance. However, it is highly recommended that each spouse receive independent legal advice. This advice is important because once the divorce is granted there are actions that need to be taken within a set timeframe, such as the division of marital assets and the arrangements for the care and custody of children. This article outlines the process whereby a divorce application is completed, filed and served in Australia.
Application for Divorce Form
The most important document in the divorce process is the Application for Divorce Form. This form can be completed online at The Commonwealth Courts Portal or the form can be downloaded from the Federal Circuit Court website. The applicant needs to affirm the Application for Divorce by signing in front of an authorised witness, such as an Australian lawyer or Justice of the Peace.
Divorce Papers: Attachments
The Application for Divorce must then be filed with the Family Law Registry, with a copy of the marriage certificate attached to the application. If the couple has been married for less than two years, it is also necessary to attach a counselling certificate, as proof that there were attempts at reconciliation. This requirement can, however, be waived in circumstances when counselling would be inadvisable, such as where there are concerns about domestic violence.
Where the divorcing couple has children, it is also necessary to supply a document that outlines the arrangements for childcare following the dissolution of the marriage. After divorce papers are filed with the Family Law Registry, the court will issue a file number and a hearing date.
Divorce Papers: Sole and Joint Applicants
Spouses can apply to divorce as joint applicants, cooperatively completing the divorce papers and lodging them together. Alternatively, one spouse can lodge the application, even if the other spouse cannot be located. In that case, the spouse seeking the divorce will lodge the document as the applicant and list their spouse as the respondent. Then the court will issue the applicant spouse two sealed copies of the divorce papers, and the applicant spouse will need to serve one copy on the respondent spouse. The applicant spouse will also need to provide the respondent spouse with a brochure from the court setting out information to help the respondent understand the divorce process. Divorce papers need to be served on the respondent spouse at least 28 days before the hearing. If the respondent spouse lives overseas, the document needs to be served no less than 42 days before the hearing. The papers can be served through the post or can be personally handed over to the respondent spouse by either the applicant or a third party.
The applicant must take all reasonable steps to try and locate their spouse. If it is not possible to locate the respondent spouse, then the applicant can request alternative arrangements from the court. The alternatives are substituted service (where the divorce papers are served to a relative of the spouse, or at the spouse’s place of employment) or dispensation of service (where the requirement is waived altogether).
The current fee to file a divorce application in the Federal Circuit Court of Australia can be found here. However, it is possible to apply for a reduced filing fee, which is approximately one-third of the full rate. To qualify for the decreased fee, the applicant spouse will need to demonstrate financial hardship. In addition, applicants who are under eighteen years of age, who are in prison, receive Legal Aid, Youth allowance, or other income support benefits will qualify for the reduced fee. If the couple jointly files the application, then both spouses will need to be eligible to qualify for the reduced filing fee.
Completing Divorce Papers: Do You Need a Lawyer?
There is no legal requirement for either spouse to engage a lawyer to complete and file a divorce application. In fact, the divorce papers themselves are relatively straightforward and can be completed by most individuals. However, in most divorces, there are potentially contentious issues involving property and/or children, and it is advisable that a divorcing couple each consult an independent lawyer to ensure that these issues are resolved in a fair manner. Spouses can choose to share a lawyer who will complete the application on behalf of both spouses, but this is generally regarded as a dangerous practice, even if the divorce is amicable.
Armstrong Legal’s family law experts can help you to complete your divorce papers and advise you about property settlements and custody disputes. Please call Armstrong Legal on 1300 038 223 or send us an email to make an appointment with one of our family law experts.
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?