A party to a marriage can make an Application for Divorce once they have been separated for a period of 12 months and 1 day. An Application for Divorce must be filed in the Federal Circuit and Family Court of Australia by filing the Application electronically through the Commonwealth Courts Portal. Before you start your application, you must check that you are eligible to file for divorce in Australia.
There are two ways in which an Application for Divorce can be filed:
- Filing a joint application: This involves both parties to the marriage agreeing to file the application together. This is beneficial if there are children under the age of 18 as there is no requirement for either of you to attend the Divorce Hearing as all joint applications are dealt with in the absence of the parties. Further, there is no requirement for the Application to be served.
- Filing a sole application: This occurs when one spouse decides to file an application alone. This application must be personally served (see further details below) on the other party and where there are children under the age of 18, the filing spouse will be required to attend the Divorce Hearing.
What information needs to be included in the Application for Divorce?
The Application for Divorce and the eFiling process is quite straightforward. The details required include
- Contact details for you and your spouse;
- Details of your residence (i.e. Australian citizen, Australian Resident, been present in Australia for 12 months)
- Details about your marriage and separation;
- Details for the current arrangements for any children under the age of 18;
- Details of any court orders in place (these orders will need to be attached to the application).
You will also need to attach a copy of your Marriage Certificate (translated if it is not in English). Further if the filing party was not born in Australia, then any document proving Australian citizenship such as a Passport or Citizenship Certificate.This is required to satisfy the Court that they have jurisdiction to hear and determine the application being made.
It should be noted that there are several things to be considered before you file an Application for Divorce as each matter is different. For example, you may be required to file additional documents which is covered briefly below.
Once you have filed the application and any supporting documents required, you will be prompted to make a payment and select a date for the divorce hearing. Details of the current filing fee (or reduced fee if you are eligible) are available on the Court website.
What if there has been a period of separation under the one roof in the previous 12 months?
If you and your spouse have been separated and living in the same residence within the last 12 months prior to filing for divorce, then the filing spouse will be required to file an affidavit setting out information to satisfy the Court that the parties are in fact separated. The information required include:
- Details of sleeping in separate rooms;
- Details of how you interact with one another in the home;
- Details of how you socialised before the marriage ended and after separation;
- Details of changes in the financial arrangements between you and your spouse.
If you and your spouse are filing a joint application, each of you will be required to file separate affidavits. Regardless of whether it is a sole or joint applications, a supporting affidavit by a friend or family member will also be required to be filed.
Serving the Application on your spouse
If you file a joint application with your spouse, this section is not required.
Once an application has been filed, it must be served on the other party at least 28 days prior to the Hearing date. You can serve divorce documents on the other party by post, or by hand through a family member, friend, or process server over the age of 18. If your spouse has a lawyer who has agreed to accept service, you can serve the documents on your spouse’s lawyer. If you are unable to locate your spouse and have made all reasonable attempts to find them, the court may waive the need for service. You will then need to eFile these service documents on the court portal.
Proof of service is required to be filed with the Court. This can be done by filing an Affidavit of Service together with an Acknowledgement of Service signed by your spouse or their lawyers in the event you served them by post.
Finalising your Divorce
The Divorce Hearing will take place before a Registrar of Division 2 of the Federal Circuit and Family Court of Australia. As a result of Covid-19, all divorce hearings are currently being dealt with the parties (or their legal representatives) attending by phone. Prior to the hearing date, the Court will provide the dial in details for the divorce list for your allocated time. You will be one of a number of matters dealt with during that time slot.
To grant a divorce, that Registrar must be satisfied that:
- The Court has jurisdiction to determine the Application for Divorce;
- That you have been separated for a period of 12 months AND the marriage has irretrievably broken down;
- If there are children, that the arrangements for the children are satisfactory.
If the Registrar is satisfied with the above, they will grant you a divorce which will become effective (that is legally binding) 1 month and 1 day from the Hearing at which time a Divorce Order will become available on the Commonwealth Courts Portal.
What should I do next?
It is important to note that a divorce dissolves your marriage and does not deal with parenting or financial matters including property settlement and spouse maintenance. Once a divorce has been granted, there is a period of 12 months for you to file any application for property orders in the event you have not already dealt with such issue. If you file an application for property orders after this time you will need to seek leave from the court to file out of time.
It is also recommended that you update your will and change any binding death nominations in relation to your super to ensure your instructions in the event of your demise are current.
It is important that you carefully consider the above both prior to, and when filing an Application for Divorce. If you require assistance with filing for divorce, or would like to speak with one of our Accredited Family Law Specialists in relation to your matter generally, please do not hesitate to contact.