Divorce, the official ending a marriage, can be a challenging and emotional journey. In in Caloundra and throughout Australia, the Family Law Act 1975 governs the divorce process.
This article will focus on divorce applications, whether you’re an Australian citizen or were married overseas.
Key Insights
Applicants must be Australian citizens, residents, or live in Australia for 12+ months.
Spouses must be separated for at least 12 months, even if cohabiting.
A marriage certificate is essential, with care evidence required for children under 18.
Marriages under two years require counselling unless waived for abuse or refusal.
Divorce applications can be solo or joint; solo applications need service from the other party.
Applications are submitted online with a fee, and court attendance may be required.
Financing options, like JustFund, support family law clients.
Who is eligible to get divorced?
Under Australian law, these are the requirements to apply for divorce.
You or your ex-partner regard Australia as your permanent home.
You are an Australian citizen by birth, descent, or grant of Australian citizenship.
You’ve lived in Australia for at least 12 months immediately before filing your divorce application.
Australia has no-fault divorce. This means that your reason for divorcing is irrelevant. All that matters is that you and your spouse have separated, and the marriage has broken down with no prospect of reconciliation, as recognized by the Federal Circuit.
Separation requirements
The Court must be satisfied that you and your spouse have lived separately for at least 12 months. There must also be no likelihood of resuming spoused life. There’s no official process for establishing a separation date. However, a separation can be demonstrated in various ways, including:
Informing family and friends;
Informing government agencies such as Centrelink;
Living in separate residences;
Maintaining separate social circles;
Separating finances such as closing joint bank accounts.
Separation under one roof
The Court recognises that not everyone can live at a different residence. To account for this, it recognises the ability of couples to be “separated under one roof“. The most important thing is to demonstrate that you are living separate lives. The best way to do this is to fill out a sworn statement describing how your separation works. Some factors the Court will consider include the following:
Sleeping in different bedrooms;
Cessation of all sexual contact;
Not eating meals together;
Splitting household chores.
The affidavit must explain your living arrangement before separating and how it has changed. Both parties should provide their own legal statement. In certain circumstances, one spouse may be unwilling to submit one. In this case, you can obtain an testimony from a third party who’s familiar with your circumstances. This could be a friend or family member.
Family Court Reconciliation Period
The Court wants to encourage couples to take every opportunity to reconsider divorcing. Couples are permitted to reconcile for a short period to test what chances there are to remain together. If the reconciliation ends after less than three months, the separation period continues where it was left off. If the reconciliation lasts longer than three months, the separation period will reset.
Necessary documentation
The primary document required for a divorce application is your marriage licence. You can apply for a replacement from the Registry of Births, Deaths and Marriages for a fee if you have lost the original.
You will need an English translation if you were legally partnered overseas and your marriage licence is in a foreign language. The translation must be from a service recognised by the National Accreditation Authority for Translators and Interpreters. The translator will provide:
A translated copy of your marriage licence;
A completed Affidavit Translation of Marriage Certificate;
A document setting out their qualifications to make the translation.
The Affidavit Translation of Marriage Licence must be filed along with your divorce application.
You may have children under 18. You must provide evidence of proper care arrangements. This may include parenting arrangements and property settlement details.
Short marriages
Marriages that lasted less than two years have an additional requirement. Both you and your spouse must attend counselling to determine if there’s a chance to salvage the marriage. Both parties must make a genuine effort to reconcile. Counselling is a safe and neutral space for each party to air the issues.
Marriage counselling
There are important considerations for getting the most out of counselling.
Set goals
Work with the counsellor to set clear goals for the sessions. What are the main issues the need discussion? You may want to discuss spending habits or communication styles. Try to find agreement on what you want to achieve.
Open communication
Communicate respectfully. Be honest and open about your concerns. Try not to hedge what you want to say. It’s recommended to be direct so everyone’s clear on your position. Listen to what the other party says actively.
Compromise
Be willing to find common ground. It’s not about getting everything you want. Focus on what’s best for the relationship. Engaging in a blame game is unhelpful. Consider what you can change as well.
Counselling exemptions
Counselling may not always be required. Exemptions include:
When your spouse refuses to participate. You can’t force someone to attend counselling. If they’ve been summoned to attend the sessions but are unavailable, you can proceed with your own divorce application.
If there’s a history of abuse. The Court won’t force a person to undergo counselling with a perpetrator of domestic or family abuse.
In situations where counselling isn’t possible or unsafe, the party must file a testimony explaining the circumstances.
Solo application vs. Joint application
There are two types of divorce applications: a solo application and a joint application. A solo application involves one applicant. A joint application involves both individuals.
For joint applicants, there’s no need to deliver the divorce documents to the other party, as both individuals apply together.
The divorce application process
With the proper documentation, you can start the divorce process. You can apply for a divorce online through the Federal Circuit and Family Court of Australia.
Divorce application
Register an account on the Commonwealth Courts Portal;
Select Application for Divorce;
Complete sections A to F of the application;
Double-check the information provided and upload any additional documents;
Print the application and sign the Affidavit for eFiling Application (Divorce);
If it’s a sole application, only the applicant must sign;
Both individuals must sign before a Justice of the Peace if it’s a joint application.
Upload the Affidavit for eFiling (Divorce);
Download the brochure Marriage, Families and Separation;
Submit the application and pay the filing fee;
Sole applicants must serve the divorce papers on their spouse.
After the filing fee and submission of the necessary forms, a court hearing date will be set. If you’ve made a sole application and there are no children under 18, you don’t need to attend Court. If it’s a joint application, neither party must attend Court unless there are exceptional circumstances requiring legal services.
Following the divorce hearing for a sole application, the Court will grant a divorce order if all is in order. This becomes the final file one month and one day after the divorce hearing.
For the full details on applying for divorce online, read this: How to Apply for Online Divorce Application? (8 Simple Steps Guide)
Serving a divorce application
Sole applicants must provide the application on their former partner after submitting it online. The documents that you must provide are the following:
A sealed copy of the divorce application with a Notice of Application for Divorce attached;
A sealed copy of the testimony for eFiling;
An Acknowledgment of Service (Divorce);
Any supporting documentation related to your application.
There are several ways you can deliver documents.
By hand
Service can be completed by someone over 18. This can be a family member, friend or other associate. You can also use a professional process server for a fee. The applicant may not deliver the documents personally.
The spouse being served should sign the Acknowledgment of service. The server must complete and prepare the Affidavit of Service by hand and attach the Acknowledgment of Service. The server must also prepare and fill out a testimony proving signature if they don’t know the respondent.
By post
You should only opt for service by post if you’re confident the respondent will sign and return the Acknowledgment of service form. In addition to the above documents, you must provide instructions for the respondent to sign the Acknowledgment form and retain a copy of the application. Include a stamped and self-addressed envelope for the respondent to return the Acknowledgment.
Fill out the Affidavit of Service – by post and attach it to the Acknowledgment of Service.
Serve your spouse’s lawyer
You can provide your spouse’s lawyer if they accept service. Once the lawyer has completed the Acknowledgment of service correctly, no other documentation is necessary.
Alternative service
If standard service methods aren’t possible, there are alternatives, such as substituted service or dispensation of service.
Substituted service
Sometimes, you may have difficulty contacting your spouse for service. In these circumstances, the Court may grant substituted service. This allows you to deliver someone you are confident will bring the application to the respondent’s attention. Typically, this will be a family member, friend or co-worker.
Dispensation of service
Once the Court is satisfied that you have exhausted all reasonable efforts to reach out to your spouse, you may get a dispensation of service. This allows you to proceed with your application without completing the service.
Financial support to obtain legal advice
Many people aren’t in a position to pay for legal representation. Each state and territory has a Legal Aid commission that provides free legal guidance. For Caloundra residents, reach out to Legal Aid Queensland on 1300 65 11 88.
You may feel that you can’t afford representation, but it doesn’t hurt to ask. Family law firms want to help people. It may be possible to work with the firm to find a solution that suits your financial position. Deferred fees are an example. Under this agreement, the client won’t have to pay legal fees until their case is completed.
JustFund
One financing option we truly believe in is JustFund. JustFund is a new and innovative credit provider that fills a crucial gap in legal financing. Traditional personal loan providers penalise you for being financially vulnerable. They’re reluctant to help if you have poor credit or unstable income. JustFund doesn’t prioritise your financial stability. They focus on the merits of your case. Their team of family law experts assesses your funding needs through their legal experience.
Funding is repaid through the proceeds from your property settlement. You won’t face months or years of interest payments. JustFund is an empathetic company that helps the clients who need it the most.
Conclusion
Application for divorce in Australia involves a series of steps that require careful attention. Whether you’re handling your divorce application or seeking help from a law firm, understanding the legal process can make the journey less daunting. Always remember the Court’s primary concern is the wellbeing of the family before, during, and after the divorce process. It’s always recommended to get legal guidance.
If you require legal assistance regarding divorce, consider seeking legal guidance from experienced specialists like Ferrall and Co. Lawyers. We are your trusted family law firm. Call now for a free 30-minute consultation.
