Separation and the breakdown of a marriage can be an extremely emotional and difficult time for you, your spouse, any children, and extended family and friends. A formal divorce is probably the last thing on your mind at that point in time.
When the right time does come and you are wanting to take that next step, turn a new page and start fresh, and move on with your life, you may consider getting formally divorced.
Applying for a Divorce can be quite a straight forward process and one that you do not need a lawyer for. These tips will help guide you through the process of divorce yourself, and we’re always here to help if you need some advice or assistance.
Where do I apply for a divorce?
To apply for a Divorce, you must:
- file an Application for a Divorce in the Federal Circuit Court of Australia; and
- pay the applicable filing fee ($930, or $310 with a concession at the time of writing).
You can file your Application in person or online through the Commonwealth Law Court’s portal known as “CommCourts”.
Once your Application has been filed, the Court will assign your Application to a Registrar of the Federal Circuit Court and schedule it for a Hearing with a set time and date.
When can I apply for a divorce?
1.) To be eligible to apply for Divorce, you need to meet a number of criteria and the Court has to be satisfied you meet these before it can make a Divorce Order. These are:
2.) That you have been married for more than two (2) years.
a) You both satisfy citizenship and residency requirements:
b) regard Australia as your home and intend to live in Australia indefinitely; or
c) be an Australian citizen by birth, descent or by grant of Australian citizenship; or
3.) ordinarily live in Australia and have done so for 12 months immediately before filing for Divorce.
4.) You and your spouse have lived separately and apart for at least 12 months prior to applying for a Divorce.
There are no prospects of reconciling the marriage.
If you meet this criteria, then you will be able to apply for a Divorce.
But we’ve been married for less than 2 years?
You may still apply for a Divorce even if you and your spouse have been married for less than two years. If this is the case, you need to convince the Court that that you and your spouse have:
- considered reconciling the marriage;
- sought assistance through marriage counselling; and
- there are no prospects of reconciling your marriage.
But we lived together for some time after we separated?
To apply for Divorce, you and your spouse need to have been separated for at least 12 months.
This doesn’t mean living in separate houses. You and your spouse can separate but continue to live under the same roof, as long as you are no longer considered to be in a relationship. The Court considers this to includes living separate financial and social lives, doing you own cooking, cleaning and washing, as well as recognising that there are no prospects of reconciliation.
To achieve this you will need to file an Affidavit of yourself and another person, such as a neighbour or family member, setting out the fact that you regard the marriage to be over and why you and your spouse remained living under the same roof.
If you have separated but have lived or remain living under the same roof, it is important that you seek legal advice as to your rights and the appropriate processes when applying for a Divorce.
But we have children under the age of 18?
You can still apply for Divorce where there are children under the age of 18 from the marriage.
In these circumstances, you need to satisfy the Court that there are proper arrangements in place for the care, welfare and development of the children in the wake of the separation. This can include an agreed arrangement for the children’s care right through to a Parenting Order made by the Court.
So, how do I apply for divorce?
To apply for divorce, you will need a copy of your Marriage Certificate to file along with the Application for Divorce.
An Application for Divorce can be made by you as a sole application, or as an application with your spouse in the form of a joint application.
A sole Application for Divorce is made by one party to the marriage. In such circumstances, you will need to pay the full filing fee and arrange for a copy of the Application to be served on your spouse. If there are children under the age of 18 years, then you will need to attend the Court hearing.
A joint Application for Divorce is an application made by you and your spouse together. In such circumstances, you may agree to equally share the cost of the filing fee. Importantly, a joint application does not require service upon the other person and it does not require you or your spouse to attend the Court hearing.
Either way, once you have filed your Application with the Court, your Application will be assigned to a Registrar of the Federal Circuit Court of Australia and given a date and time for a Hearing.
Does my spouse have to know that I am applying for Divorce?
Yes. If you file a sole Application for Divorce, your spouse must be made aware that you have made an Application for a Divorce. This is achieved by having your Application personally served on them.
How do I ‘personally serve’ an Application on my spouse?
The Court requires that your Application for Divorce be personally served on your spouse by a person other than you or a family member 28 days before the date of the hearing (if the other party is in Australia) or 42 days before the date of the hearing (if the other party is outside of Australia).
We engage professional Process Servers who locate your spouse and serve your Application on them, and these service providers also take instructions directly from consumers. The cost for these varies depending on how far they have to travel and how many attempts at service they need to make, generally it is no more than a couple of hundred dollars.
How do I prove my Application has been served on my spouse?
To prove service has been properly affected, your spouse needs to sign an Acknowledgment of Service. This document will be given to your spouse by a Process Server to sign, and once signed it needs to be filed with the Court.
The person who served the Application on your spouse then needs complete an Affidavit of Service by Hand which is also filed with the Court.
Finally, it is recommended that you, as the person making the Application, complete and file an Affidavit Proving Signature.
These documents show the Court that:
- your spouse knows that you are making an Application for Divorce;
- your Application for Divorce was personally served on the other party; and
- it was in fact the other party who accepted service of your Application.
But what if I don’t know where my spouse is OR my Application can’t be personally served on them?
In the event personal service cannot be completed, it is possible to serve your Application for Divorce on your spouse by other means. This is known as substituted service.
Substituted service can include made by post (preferably Registered Post), email, and even through social media, with Facebook messenger being the most common of these options.
To be able to serve your Application by one of these substituted means, an application needs to be made to the Court seeking that substituted service of your Application for Divorce be allowed.
But remember, it is important that you first attempt to have your Application personally served on your spouse, unless you do not know where they are or how to contact them. Substituted service is the last resort.
In circumstances were substituted service of your Application for Divorce is required, it is recommended that you seek legal advice as to your rights and the proper processes.
My Application has been filed and served, what now?
Once your Application has been filed and served, you need to wait for (and possibly attend) the allocated Hearing.
You only need to attend the Hearing if:
- you made a sole Application for Divorce and there are children under the age of 18; or
- your Application for Divorce is being contested or otherwise opposed by your spouse.
If you do not need to attend the Hearing, then your Application will be determined in chambers. In other words, the Registrar will determine your Application on the documents filed with the Court without the need for you or your spouse to attend.
Either way, the Registrar will need to be satisfied of the following:
- that the Court has jurisdiction;
- the application has been served on your spouse;
- there is a legal marriage;
- 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.
Only when the Registrar is satisfied of the above elements, will a Divorce Order be made.
A Divorce Order will become effective one (1) month and one(1) day from the date of the Hearing.
It’s done! But what next?
Once the Divorce Order has been made, it is important that you think about how this change may affect your future.
Firstly, you have 12 months from the date of the Divorce Order to initiate court proceedings to finalise property settlement and/or spousal maintenance matters before the legally allocated time to deal with these matters lapses. If that happens you cannot initiate such proceedings, however you can finalise property settlement and/or spousal maintenance matters by way of a Binding Financial Agreement.
Secondly, you should revise the terms of your Will, Power of Attorney, and/or Advance Health Directive as well as the beneficiaries of your superannuation and life/other insurances to reflect the change in your circumstances and ensure your estate is dealt with in the manner you want it to be dealt with.
Finally, it may be necessary to arrange a formal agreement as to how any of your children under the age of 18 enjoy a meaningful relationship with you and your ex-spouse.
So, as you can see this can be done without our help, but we can provide peace of mind in what is a difficult time.