How to Apply for a Divorce

Are you thinking of applying for a divorce? This podcast will help you understand what you need to do and the path ahead.

Lydia-Tasevska

How to Apply for a Divorce

In this podcast, Associate, Lydia Tasevdka, a Family Law Practitioner at Australian Family Lawyers provides the a comprehensive overview in relation to applying for a divorce in Australia.

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Transcript

Lydia: Married couples can apply for a divorce in Australia if the marriage has broken down irretrievably. Couples must have been separated for at least 12 months and one of the parties:

  • must regard Australia as their home and intend to live in Australia indefinitely; or
  • be an Australian citizen by birth, descent or by grant of Australian citizenship; or
  • live in Australia and have done so for 12 months immediately before filing for divorce.

In Australia there is a no-fault divorce.  What this means is when determining whether to grant a divorce the Court does not consider why the marriage ended and the only ground for divorce is that the marriage broke down and there is no reasonable likelihood that the parties will get back together.

It is essentially a 3 step process to getting a divorce, which is what I would like to discuss today.

Interviewer: Lydia, what are the steps involved with applying for a divorce in Australia?

Lydia: The First Step is Separating

In Australia, you must have been separated for at least 12 months prior to applying for your divorce.

Interviewer: Could you clarify what “separation under the one roof” means?

Lydia: Sure. The law understands that sometimes following a separation, you and your spouse may still have to share the same accommodation and one party may still perform some household services for the other, such as washing or ironing. Separation under the same roof is where you have been separated for over 12 months, but you:

  • lived in the same home with your spouse during part or all of the 12 months immediately before you applied for divorce; or
  • are still living in the same home with your spouse.

You can still get a divorce if you are or were separated under the same roof, but you will need to satisfy the court that you were separated for the 12 months immediately before you filed for divorce. You need to support your divorce application with an affidavit. In your affidavit, you need to prove that you and your spouse have separated. You will need to explain any:

  • Whether there has been any change in sleeping arrangements
  • Whether there has been any reduction in shared activities or family outings
  • Whether there has been any decline in performing household duties for each other
  • Whether there has been any division of finances; for example, separate bank accounts, and
  • Whether there has been any any other matters that show the marriage has broken down; for example, if you have notified family and friends of your separation.

Your affidavit should also explain:

  • Why you continued to live in the same home following separation and what intention, if any, you have of changing the situation.
  • Living arrangements, you made for any child of the marriage under 18 years during the time you were living under one roof.
  • What government departments you have advised of your separation if you receive a government benefit; for example, Centrelink or Child Support. If correspondence has been received from these departments about your separation, attach a copy to your affidavit.

If you intend to rely on separation under one roof for the purposes of divorce, you should make sure that others know about it from the beginning of your separation, as the Court usually requires evidence (in an affidavit) from a neighbour, friend or relative (corroborative evidence in other words) that there was a separation.

Now I would like to discuss the second step, which is preparing your application.

You can apply for the divorce by yourself or you can make the Application jointly with your former spouse.

Either way, you will need to complete an Application for Divorce form which is fairly straight forward and can be downloaded from the Federal Circuit Court of Australia website, which also has a lot of useful information about applying for a divorce and how to complete the Application. When you file your Application, you will be charged a Court filing fee. You may be eligible for a reduced fee if you hold certain government concession cards or you can demonstrate financial hardship. The Court will provide you with a hearing date

And finally, the Third Step in the divorce process is to prepare for your court hearing.

You must attend your divorce hearing where:

  • you made the Application for divorce yourself; and/or
  • where you and your former spouse have children who are under 18 years of age.

If you do not have children under 18, or if you and your former spouse made a joint Application for divorce, you can both choose not to attend your divorce hearing.

Interviewer: Ok, could you explain what happens at the hearing?

Lydia: Your matter will be one of many divorce Applications being heard by the Court that day.  When you arrive, tell the Court officer your name and they will note your attendance. You then take a seat in the Court room and the Court officer will call your name when your matter is to be heard.  Your lawyer can attend the hearing on your behalf if you wish.

Divorce hearings are generally quite brief. During your hearing, the Registrar may ask you questions about the information in your Application or about the service of the Application, if relevant.  Where young children are involved, the Registrar may ask about arrangements for the children, such as which parent they live with, how often they spend time with the other parent and how they are financially supported.

Interviewer: Can you please explain what happens AFTER the hearing?

Lydia: If the Court is satisfied that the grounds for divorce have been established and that the Application has been properly served on the other party (if your Application was not made jointly), the Court will grant the divorce.

The divorce order will become final one month from the date of the hearing, at which time a Divorce Order will be sent to you and your former spouse (if they have provided their address).

Interviewer: Are there any time limits to finalise a property settlement after the divorce becomes finalised?

Lydia: It is very important to note there is a time limit of 12 months after the divorce is final in which to finalise a property settlement with your husband or to apply to court for property orders if you have been unable to reach agreement. If the time limit has expired you can make an application to the Court seeking leave, that is, permission, to proceed with your out of time application. However, this is only granted in limited circumstances. This is why we generally advise to finalise property matters before applying for a divorce.

Interviewer: What does service of divorce documents mean?

Lydia: Service is the process of giving court documents to your spouse after they have been filed, in accordance with the rules of a court. Service ensures all parties have received the documents filed with a court.

If you have made a sole application for divorce, you must arrange to serve the following three documents on your spouse:

  1. a sealed copy of the Application for Divorce
  2. a copy of the publication  Marriage, Families and Separation, and
  3. any other documents filed with the Court, except the photocopy of your marriage certificate.

If you have made a joint application for divorce, you do not need to serve the documents.

Interviewer: How does the spouse serve divorce documents?

Lydia: You can serve documents on your spouse in two ways, service by post or by hand.

If you are Servicing the documents by Post: You should only attempt service by post if you are confident your spouse will return the Acknowledgment of Service (Divorce) form to you. Without this, the Court cannot be sure your spouse has received the documents in which case you may need to arrange service by hand before the application can be considered.

If you are servicing the document by Hand: You cannot serve the documents on your spouse yourself. You must arrange for a person over 18 years of age to serve the documents on your spouse. The server can be a family member, friend or professional process server.

If your spouse has a lawyer who is willing to accept service, you can serve the documents on this lawyer. A signed Acknowledgment of Service (Divorce) form from your spouse’s lawyer is proof of service.

Interviewer: Are there any time limits for serving the documents to the court?

Lydia: If your spouse is in Australia, the documents must be served at least 28 days before the court hearing.

If your spouse is overseas, the documents must be served at least 42 days before the court hearing.

Interviewer: What if a person is having trouble serving the divorce application on the spouse?

Lydia: If you are having trouble serving the divorce application on your spouse, you can apply to the Court for:

  1. Substituted service, or
  2. dispensation of service.

The legal issues surrounding substituted service and dispensation of service are complex, and I recommend that you seek legal advice on this.

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