How to Get A Divorce
Divorce is the legal dissolution of a marriage. In Australia, we have a ‘no-fault’ divorce system, which means that a person who is married can obtain a divorce if they have been separated from their spouse for 12 months or more and the marriage has broken down irretrievably without the need to prove anyone is at fault. This article outlines how to get a divorce in Australia.
Am I eligible?
To be eligible to get a divorce in Australia, a person must fulfil the following criteria:
- Be legally married;
- The marriage has irretrievably broken down and parties have been separated for at least 12 months;
- There are satisfactory care arrangements for any children of the marriage who are still under the age of 18;
- The court has jurisdiction to make a divorce order. This means that at least one party must either be an Australian citizen, intend to live in Australia indefinitely or have lived in Australia for the previous 12 months;
- Both parties to the marriage are aware of the divorce application and court date.
An individual can make a sole application for a divorce and serve the application on their spouse. Alternately, where both spouses are in agreement, a joint application can be made. The application for divorce must be filed in Division 2 of the Federal Circuit and Family Court of Australia (FCFCA)
If a sole application for divorce is filed, the below requirements must be fulfilled:
- If there are children aged under 18, the applicant must attend the court hearing; and
- The applicant must prove that the other party has been validly served with the application.
A divorce application can be filed online, in person or by post. The application must be signed by the applicant and affirmed by an authorised person such as a JP or a lawyer. A copy of the marriage certificate should be attached to the application as well as any other relevant documents. If any of these documents are not in English, a translation should also be included as well as an affidavit by the translator.
Service of documents
To get a divorce, the applicant must validly serve the divorce application on the respondent. After filing three copies of the application with the court, the applicant will receive a sealed copy of the application back from the court. The applicant must then arrange for this sealed copy to be personally served on the respondent by a person other than the applicant. The person who carries out service may be a process server or a person known to the parties, such as a friend or family member. The person must be aged over 16 and the papers must be served at least 28 days before the date of the divorce hearing.
If an applicant is unable to locate their spouse and therefore is unable to effect service, they may apply to have the court dispense with service or allow for substituted service. If the court is satisfied that reasonable efforts have been made to locate the respondent, it may order service be dispensed with. If it is satisfied that it is appropriate to order substituted service of documents on the respondent – such as by email or via Facebook – it may make an order allowing this to occur.
Responding to the application
If the respondent opposes the divorce application or disputes any of the facts included in the application, they may file a Response to Divorce with the court. A divorce application may be opposed on the basis that the parties have not been separated for 12 months or that the court does not have jurisdiction.
If the respondent consents to the divorce and agreed with all the information included in the application, they do not need to file a Response to Divorce and they do not need to attend the hearing.
Divorce becomes absolute after one month and one day
If the court is satisfied that the formal and substantive requirements for a divorce have been fulfilled it will make a decree nisi, which is the first stage in getting a divorce. The decree will become absolute one months and once day after the decree nisi is made. On that day, the divorce order has effect, and the marriage is dissolved.
A divorce order brings a marriage to an end, but it does not determine what arrangements should be made for the children of the marriage or how property should be divided. If you are considering getting divorced and require financial orders, you should be aware that the date the divorce order is obtained will affect the running of the limitation period for obtaining a property settlement. An application for financial order must be made within 12 months of the date of your divorce.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.