Divorce, the legal process of 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
- Individuals can apply for a divorce if they consider Australia their permanent home, are Australian citizens, or have lived in Australia for at least 12 months before applying.
- The primary document required for a divorce application is the marriage certificate. If there are children under 18, evidence of proper arrangements for their care is needed.
- Divorce applications can be solo (one party applies) or joint (both parties apply together). Solo applications require the applicant to serve divorce documents on the other party.
- The parties must submit an online application to the Federal Circuit and Family Court of Australia. They must pay a fee (unless eligible for a fee reduction) and potentially attend a court hearing.
Who is eligible to get divorced?
Under Australian law, you can apply for a divorce if you or your ex-partner regard Australia as your permanent home or if you are an Australian citizen by birth, descent, or grant of Australian citizenship. You may also apply if 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 the marriage broke down with no prospect of reconciliation.
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 married 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 an affidavit 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.
Download our FREE Divorce Checklist for a more detailed guide on the next steps.
Necessary documentation
The primary document required for a divorce application is your marriage certificate. 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 married overseas and your marriage certificate 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 certificate;
- A completed Affidavit Translation of Marriage Certificate;
- A document setting out their qualifications to make the translation.
The Affidavit Translation of Marriage Certificate must be filed along with your divorce application.
If you have children under 18, you must provide evidence of proper care, welfare, and development arrangements. This may include parenting arrangements and property settlement details.
Solo application vs. Joint application
There are two types of divorce applications: a solo application and a joint application. A solo application involves one party applying for the divorce, while a joint application involves both.
For joint applicants, there’s no need to serve the divorce documents to the other party, as both parties apply together.
The divorce application process
Once you’ve gathered your 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 supporting documents;
- Print the application and sign the Affidavit for eFiling Application (Divorce);
- If it’s a sole application, only the applicant must sign;
- Both parties 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 filing, 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.
Following the divorce hearing, the Court will grant a divorce order if all is in order. This becomes final 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 serve the application on their former partner after submitting it online. The documents that you must serve are the following:
- A sealed copy of the divorce application with a Notice of Application for Divorce attached;
- A sealed copy of the Affidavit for eFiling;
- An Acknowledgment of Service (Divorce);
- Any supporting documentation related to your application.
There are several ways you can serve 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 serve the documents personally.
The spouse being served should sign the Acknowledgment of service. The server must complete the Affidavit of service by hand and attach the Acknowledgment of service. The server must fill out an affidavit 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. In addition to the above documents, you must provide instructions for the respondent to sign the Acknowledgment 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 serve 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 serve 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 contact your spouse, you may get a dispensation of service. This allows you to proceed with your application without completing the service.
Conclusion
Applying for a 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.
If you require legal assistance regarding divorce, consider seeking legal advice from experienced specialists like Ferrall and Co. Lawyers. We are your trusted family counsellor, and we can help you. Call now for a free 30-minute consultation.
Don’t let legal issues stress you out. Contact us today for a free consultation.
The information provided here is general and not meant to replace personalised advice. It doesn’t consider your specific situation, so it shouldn’t be the sole basis for any decisions. We disclaim any loss or damage from relying solely on this information. Always consult a legal or financial professional for advice tailored to your circumstances before making any financial or legal decisions.
