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Fast Facts About… Divorce

By 15 October 2019Divorce
Fast Facts Divorce

by Luke Steel and Kiara Greenway

“Just a divorce” – it’s a statement we regularly hear from people when they contact our office seeking family law advice.

However, more often than not, what people really want is advice and assistance with regard to putting in place arrangements for the care of their children or the division of their assets and liabilities. These issues are very different and somewhat distinct from the act of legally ending your marriage by way of a divorce. In terms of obtaining a divorce, there is a separate process that parties are required to go through to legally formalise the end of a marriage. Here, we take a look at some of the questions you may have regarding the formal process of applying for divorce.

How long must I be separated from my partner for before I can apply for a divorce?

  • You must be separated for at least one year before you can apply for a divorce.

Do we need to agree to apply for a divorce?

  • No, you can file an application for divorce completely independently from your partner – this is referred to as a “sole” application. If you and your partner do agree to apply for divorce, this enables you to file a “joint” application.

Do any documents need to accompany the application for divorce?

  • If you are filing a sole application you will need to file the following documents in support of your application:
    • acknowledgement of service;
    • affidavit of service;
    • affidavit of e-filing;
    • copy of marriage certificate.
  • When filing a sole application, it will be necessary to personally serve your former partner with your application. You cannot serve your former partner – an independent person, over the age of 18, must attend to this. It is common practice to engage a process server to effect service. Once service has been effected, you will be required to provide to the Court an acknowledgement of service, together with an affidavit of service from the individual who effected service, in order to demonstrate to the Court that service has successfully occurred.
  • If you are filing a joint application you will need to file the following documents in support of your application:
    • affidavit of e-filing;
    • copy of marriage certificate.
  • Additionally, for both a sole and joint application:
    • in the event you (or your partner in the event of a joint application) are an Australian citizen by way of a grant of citizenship, you will need to file a copy of your Australian citizenship certificate;
    • if your marriage was less than two years at the time of filing the application, you will be required to provide a copy of a counselling certificate – you and your partner will need to attend counselling in order to obtain this certificate.

Is there anything I need to “prove” to the Court?

  • The Court will need to be satisfied that:
    • it has jurisdiction;
    • the application has been served on your former partner;
    • there is a legal marriage;
    • you and your partner have been separated for at least 12 months;
    • the marriage has broken down irretrievably;
    • where there are children of the marriage who are under the age of 18 years, the current arrangements for their care, welfare and development are acceptable.
  • In Australia, it is a “no fault” divorce system and, provided the above factors are satisfied, you will not need to provide evidence of the circumstances or reasons for the separation.

Can an application for divorce be filed online?

  • Yes, it can be filed through the Commonwealth Law Court’s portal known as “CommCourts”.

How much does it cost to apply for a divorce?

  • The applicant(s) must pay a filing fee to the Court, which is currently the amount of $910. In the event of a joint application, the parties may choose to share this fee between them. In some instances, where certain criteria are satisfied (such as a party holding a current health care card or concession card), you may be entitled to a reduced filing fee of $300. If you are filing a joint application, both parties must satisfy the criteria in order to qualify for the reduced fee.
  • If you choose to engage a lawyer to assist you with your application for divorce, there will also be applicable professional fees payable to your lawyer, which may be offered as a fixed fee divorce package encompassing the preparation of your application, arranging service, and attending the divorce hearing.

How long does it take before my divorce application is considered by the Court?

  • If your application for divorce is filed in the Brisbane registry, it will be heard by the Court about three months after the time it is filed.

Do I need to attend the Court hearing?

  • If it is a joint application, you do not need to attend the hearing.
  • If it is a sole application, the applicant will need to attend the hearing if there are children under 18 years of age, or the application is being contested or opposed by your former partner.

When will my divorce be final?

  • The divorce does not become final until one month and one day after the application is heard by the Court, and you will be provided with the divorce order issued by the Court.

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