Divorce in the new age of marriage

Marriage in Australia is now recognised as a union between two people to the exclusion of all others, voluntarily entered into for life. But life is a very long time and marriages do not always last the distance.

Marriage and Divorce for married persons of any sex or gender in Australia came into effect on 9 December 2017. This includes the recognition of married persons of any sex or gender who married overseas and where a marriage certificate was issued.

However, the Federal Circuit Court, which handles the majority of divorces in Australia, has been slow to bring its forms and procedures up to date.

As at 19 March 2018 all applications for divorce for a man and a woman are processed online through the Commonwealth Courts portal. This is not the case for married persons of the same sex or gender who still have to make their application for divorce the old fashioned way.

An application for divorce for a married person of the same sex or gender is required to be in writing, using the form which was previously used in relation to married persons of the opposite sex.

These forms identify marital status as husband and wife. Married persons of the same sex or gender are required to cross out these references and hand write their preferred marital status. The Court will, at this stage, accept the filing of a divorce application for married persons of the same sex or gender in person at a Federal Circuit Court Registry only. These applications cannot be filed online.

Following filing of the documents the usual procedure in respect of a Divorce Application applies:

a. Service is required if not a joint application;
b. Attendance at Court is mandatory if there are children under 18, otherwise attendance is not required;
c. The Court will grant a Divorce at the date of the hearing, subject to the parties being separated for 12 months; and
d. Finally… the Divorce will become final 30 days after the grant of the Divorce.

It is understood the Federal Circuit Court is currently amending its forms and it is hopeful that marriage equality will soon extend to the filing of an application for divorce for everybody.

Amanda Graham