101 Guide to Divorce

What is a divorce?

A divorce is the legal ending of a marriage.  You can apply for a divorce once you become eligible, and you do not need the other person’s consent. 

Australia has a ‘no fault’ approach to divorce, which means that you do not need to prove to the Court that the other person did something which caused the breakdown of the marriage.  When considering a divorce application, the Court needs to only be satisfied that the eligibility criteria are met (see below).

A divorce does not determine your financial settlement or arrangements for your children, it is purely the act of ending the marriage. A financial settlement and arrangements with respect to your children will fall outside of the divorce application.      

The Federal Circuit & Family Court of Australia (“the Court”) has jurisdiction to grant your Application for Divorce.

Am I eligible to apply for divorce?

To be eligible to apply for a divorce in Australia you need to be able to say “yes” to the following questions:-

 

  • Has your marriage broken down and there is no reasonable likelihood that you will get back together?

  • You or your spouse need to either be:-

    • Both in Australia or become an Australian citizen by descent; OR

    • Are Australian citizens by grant of citizenship; OR

    • Are lawfully present in Australia, lived in Australia for the last 12 months and intend to continue living in Australia.

  • Have you been separated for more than 12 months?

  • Do you have a copy of your marriage certificate? 

What do you do if you do not have a copy of the marriage certificate when applying for divorce?  

If you do not have your marriage certificate then you will need to obtain a copy from Births Deaths and Marriages in the state or territory you were married in.  If after all reasonable attempts you are unable to provide a marriage certificate you will need to prepare an Affidavit explaining the details of your marriage and why a marriage certificate cannot be attained.  You should contact a lawyer to assist you in this regard.

Why would I seek legal advice for a Divorce Application?

There are several reasons you might need to obtain legal advice for completing your Application for Divorce, they include:-

  • If you need help completing your Application for Divorce;

  • If you are unsure if you are eligible to apply for a divorce.

  • If there are children of the marriage under the age of 18 years, when considering an Application for Divorce, the Court must be satisfied that there are appropriate arrangements in place for the children of the marriage;

  • If you have been married less than 2 years;

  • If you and your spouse were separated, but living under the same roof;

  • If you are unable to locate your spouse;

  • If you were married overseas, or your marriage certificate is not in English;

  • If you are currently living overseas.

Types of Divorce Applications

There are two ways you can make an application for divorce to the court, solely i.e. by yourself, or jointly i.e. with your spouse. 

What is a Joint Application for Divorce?

You can jointly apply for an Application for Divorce with your spouse.  A joint application is a simpler process than a sole application and is a good option when both parties are agreeable to the divorce as there is no need for either party to attend the Court hearing.

Both parties need to prepare and sign the Application for Divorce.

Children under 18

If there are children under 18 years of age, the Court must be satisfied that appropriate arrangements are in place for their care and details will need to be included in your Application.    

Filing your documents on the Commonwealth Court Portal

You will need to register to access the Commonwealth Court Portal where all your documents will be filed.  You can register here www.comcourts.gov.au

Once the Application for Divorce has been filed with the Court, the Court will set a Court date to review your Application for Divorce.  This can be anywhere from 4 weeks to 12 weeks away depending on the Court’s availability.  Usually a shorter timeframe than a sole application as there is no need to serve the documents and no appearance required by either party.

Court hearing

There is no need to attend the Court hearing for a joint Application for Divorce, even if there are children under the age of 18 years (unless the Court requests you to do so).

If there is an issue with your Application for Divorce, such as not satisfying the eligibility criteria (above) the Court may adjourn your Application for Divorce to another date.

If you are unsure whether you should attend the Court hearing you should consider contacting the Court or seeking legal advice.

If all matters are in order, the Court will grant your Divorce and it will come into effect in approximately 1 month and 1 day.  At that time a Divorce Order will be uploaded onto the Commonwealth Court Portal which will be available for you and your spouse to download.  This Divorce Order will confirm that your marriage has been dissolved. 

 

What is a Sole Application for Divorce?

You can apply as a sole applicant, where you prepare and sign the Application for Divorce yourself.  You can file the Application for Divorce without the other party’s consent or knowledge.     

Children under 18

If there are children under 18 years of age, the Court must be satisfied that appropriate arrangements are in place for their care and details will need to be included in your Application.  If you are the applicant in a sole application where there are children under the age of 18 years, you must attend the Court hearing. 

Filing your documents on the Commonwealth Court Portal

You will need to register to access the Commonwealth Court Portal where all your documents will be filed.  You can register here www.comcourts.gov.au

Once the Application for Divorce has been filed with the Court, the Court will set a Court date to review your Application for Divorce.  This can be anywhere from 6 weeks to 16 weeks away depending on the Court’s availability.

Serving your Spouse

Once your Application for Divorce has been ‘sealed’ by the Court, you need to serve the Application for Divorce on your spouse.  You can serve the Application for Divorce by hand or post. 

The person responsible for serving the documents to your spouse must prepare and sign an Affidavit of Service setting out the steps they took to serve the documents.  Please note, you should not serve the Application for Divorce by hand to your spouse, this should be done through a neutral third party such as a process server. 

Your spouse is then required to sign an Acknowledgement of Service which confirms the date they received the documents. 

You are then required to sign an Affidavit Proving Signature which confirms that you recognise the signature of your spouse on the Acknowledgement of Service as being correct. 

The Affidavit of Service, Acknowledgement of Service and Affidavit Proving Signature must all be filed with the Court. 

The Court needs to be satisfied that your spouse is aware of the Application for Divorce and has been served in time.

Service can become difficult if your spouse does not want to sign the Acknowledgement of Service, they are overseas, they evade service or simply ignore you.   There are also a number of documents that are required to be prepared and if these are not filed with the Court, the Court may not grant your Divorce and adjourn your Court hearing to another date until all documents have been completed and filed.

If you think you might have difficulty serving your spouse, or completing the necessary paperwork, it is important to get legal advice at the outset. 

Court hearing

If you are the applicant in a sole application where there are children under 18 you must attend Court.

If there are no children under 18, all matters of eligibility are fulfilled, your spouse has been served and all documents filed with the Court, there is usually no need for you to attend the hearing. 

If you are unsure whether you should attend the Court hearing you should consider contacting the Court or seeking legal advice.

If all matters have not been attended to at the hearing the Court may adjourn your Application for Divorce to another date.

If all matters are in order, the Court will grant your Divorce and it will come into effect in approximately 1 month and 1 day.  At that time a Divorce Order will be uploaded onto the Commonwealth Court Portal which will be available for you to download.  This Divorce Order will confirm that your marriage has been dissolved. 

If you would like to discuss anything to do with divorce you can call our team. We offer a complimentary 30-minute initial consultation.

Authors:

Sanaz Naimi Roshan – Director and Accredited Specialist in Family Law

Natalie Menchikova – Lawyer

 

 

kate liscombe