How to Divorce
Divorce is the legal ending of a marriage. The sole legal requirement for obtaining a divorce is the ‘irretrievable breakdown’ of the marriage. This is proven by the two parties of the marriage being separated for a minimum of 12 months with no prospects of reconciliation.
To determine when separation occurred, the benchmark is when you stopped living together as a couple. Typically, this occurs when one person moves out of the home. However, it is also common to live in the same house together but lead separate lives. This is referred to as ‘separated under the one roof’.
In circumstances where you need to prove separation under the one roof or if you are unsure that you are separated under the one roof, the following will be taken into consideration, whether:
- you sleep together;
- you have sexual intercourse/activity;
- you share meals and domestic duties;
- you share money and bank accounts;
- your family and friends deem you as no longer living as a married couple.
To satisfy the requirements under Section 39(3) of the Family Law Act 1975 (Cth) to apply for a divorce in Australia, at the time of filing the application either party must:
- be an Australian citizen by birth or descent; or
- be an Australian citizen by grant of Australian citizenship; or
- regard Australia as their home and intend to live indefinitely in Australia; or
- be ordinarily resident in Australia and have been so resident for 1 year immediately before filing the application.
If you were married overseas or if you are unaware of the other party’s location, you can still apply for a divorce in Australia, if you fulfil any of the above requirements.
How to get a divorce If There Are Children Under 18?
For marriages involving children under the age of 18, the court requires information in relation to the arrangements that have been made for the children, prior to the divorce being granted. This information typically includes where they will live, financial support, current and future health and education plans and how they will continue to maintain a meaningful relationship with both parents.
An application for divorce can be made jointly by the parties or independently by either party. If applying independently, you do not need the other party’s consent. You can apply once you have been separated for the requisite 12 months.
To apply for a divorce online, you can access the Federal Circuit Court of Australia website and follow the link ‘Apply for Divorce’. Alternatively, there is a Divorce Service Kit provided by the court providing a step-by-step guide to completing the divorce application and serving it by post or hand.
When filing the application with the court, it can be done electronically through the Commonwealth Courts Portal, in person at one of Queensland’s Birth, Deaths, Marriages and Divorces registry office or sent via post. If you are filing the document via post or in person, the original application and two photocopies must be provided together with any relevant supporting documentation and your marriage certificate.
A fee is payable when filing the Application for Divorce. Fees typically change and we, therefore, recommend you access the Federal Circuit Court website to ascertain the current filing fee. In the event you are suffering financial hardship or you hold a government concession card, you can apply to have the fee reduced and the form is available on the court’s website.
If you decide to make a sole application, the divorce paperwork filed in the court will need to be ‘served’ on the other party. Once the documents have been served, certain forms need to be completed to prove that service was effected. Typically, a process server is engaged to serve the documents on the other party personally. However, if you wish to serve the other party yourself, you can only serve them by mail. The other party then needs to complete the Acknowledgement of Service Form to prove the service was effected. Service is required to occur at least 28 days before the hearing date. If the other party is overseas, the documents must be served at least 42 days before the hearing date.
The next step, once the Application is filed in the court and served on the other side, is to wait for the court date. If there are no children under the age of 18, neither party is required to attend court. If a sole application has been made and there are children under the age of 18, the applicant must attend the court hearing.
The matter will be listed before a registrar in the Federal Circuit Court of Australia. The court will grant the divorce if all requirements have been met and the court is satisfied that adequate arrangements have been made for any children. The divorce order then becomes final 1 month and 1 day after the court date. The date the order becomes final is the actual divorce date.
The divorce order is issued online through the Commonwealth Courts Portal. The court no longer issues hard copy orders.
If your marriage has broken down and you would like legal advice on obtaining a divorce contact Armstrong Legal on 1300 038 223 or send us an email.