Divorce Info < From Aussie Divorce

Divorce

Can I apply for a divorce?
Application for Divorce Kit
What a court considers in divorce applications
What will a divorce cost?
Can I oppose a divorce application?
What if the application has errors of fact?
When should I file the Response to Divorce?
Do I have to attend the divorce hearing?
We are getting divorced - will decisions about future arrangements for our children, property and maintenance be made at the same time?
I have applied for a divorce, is it safe to set a wedding date for my new marriage?
What is meant by separation under the one roof?
We want to divorce but have been married less than two years. We understand we have to do certain things, what are they?
I married overseas - can I get a divorce in Australia?
I can’t find my spouse to serve a divorce application, what do I do?

Federal Magistrates Court Rules Part 25 Divorce
http://www.fmc.gov.au/rules/html/part25.html

Can I apply for a divorce?

You can apply for a divorce in Australia if either you or your spouse:

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

You need to satisfy the Court that you and your spouse have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life. It is possible to live together in the same home and still be separated.

For further information please visit the Family Court web site
http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/
Separation+and+Divorce/Divorce/

Divorce Kit has instructions for completing the application and filing it. It includes an Application for Divorce form.
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Application for Divorce Kit

This kit provides the steps in applying for and obtaining a divorce and the application for divorce form.

For further information please visit the Family Court web site
http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Forms/
Divorce+forms+and+kits/
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What a court considers in divorce applications

The Family Law Act 1975 established the principle of no-fault divorce in Australian law. This means that a court does not consider why the marriage ended.

The only ground for divorce is that the marriage has broken down irretrievably. That is, that there is no reasonable likelihood that you will get back together. You must have been separated for at least 12 months and one day in order to satisfy the Court that the marriage has broken down irretrievably.

If there are children aged under 18, a court can only grant a divorce if it is satisfied that proper arrangements have been made for them.
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What will a divorce cost?

You must pay a fee when you file for divorce. As at 1 October 2006, the fee to file an Application for Divorce in the Federal Magistrates Court is $405. This fee is set by regulation and is generally only
adjusted every two years.

The fee does not apply in some cases; for example, if you hold certain government concession cards or you are experiencing financial hardship. To be eligible for a fee exemption or waiver for a joint application, both you and your spouse must qualify for the exemption or waiver. If only one spouse qualifies for the exemption or waiver, then the full fee applies.

For further information please visit the Family Court web site
http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/
Separation+and+Divorce/Divorce/Court+fees
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Can I oppose a divorce application?

If you have been separated for more than 12 months, there are few opportunities to oppose a divorce application. You can only oppose the divorce where:

there has not been 12 months separation as alleged in the application, or
the court does not have jurisdiction.

If you do not want the divorce granted, you must complete and file a Response to Divorce and appear in person on the hearing date. You need to set out the grounds on which you seek the dismissal in the Response to Divorce.

If you file a response, you should attend the divorce hearing. If you do not attend, the Court may decide the divorce application in your absence. If it is difficult for you to attend in person, you may ask the Court to appear by telephone.

For further information please visit the Family Court web site
http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/
Forms/Divorce+forms+and+kits/
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What if the application has errors of fact?

If you want the divorce granted but disagree with the facts in the Application for Divorce, you may file a Response to Divorce. You need to state which facts you disagree with in the Response to Divorce. The errors might, for example, be that dates of birth are incorrect or the details regarding the children are no longer correct. You should attend the divorce hearing.
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When should I file the Response to Divorce?

If you want to file a Response to Divorce, you need to file it at a family law registry:

if served in Australia - within 28 days of the application being served on you, or
if served outside of Australia - within 42 days of the application being served on you.

Do I have to attend the divorce hearing?

If there is no child of the marriage aged under 18 years, you are not required to attend the court hearing. This applies for both sole and joint applications.

If you have made a joint application and there is a child of the marriage aged under 18 years, neither you nor your spouse are required to attend the court hearing.

If you have made a sole application and there is a child of the marriage aged under 18 years, you must attend the court hearing unless circumstances prevent you from attending.

If a respondent has completed and filed a Response to Divorce, he or she should attend the divorce hearing. If you do not attend, the Court may decide the divorce application in you absence.

If a respondent has, in a Response to Divorce, opposed the application, the respondent must appear in person on the hearing date.

If it is difficult for you to attend in person, you may ask the Court to appear by telephone. You must request in writing a hearing by telephone if you are unable to attend because of reasons such as distance from the Court or incapacity.

A child of the marriage includes:

any child of you and your spouse, including children born before the marriage or after separation
any child adopted by you and your spouse, or
any child who was treated as a member of your family prior to your final separation; for example, a step-child or foster child.

See Rule 25.11 of the Federal Magistrates Court Rules 2001.
http://www.fmc.gov.au/rules/html/part25.html
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We are getting divorced - will decisions about future arrangements for our children, property and maintenance be made at the same time?

The granting of a divorce does not decide issues about property and maintenance or parenting arrangements for your children
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I have applied for a divorce, is it safe to set a wedding date for my new marriage?

You should not plan to remarry until the divorce order is finalised.
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What is meant by separation under the one roof?

It is possible for you and your spouse to be separated but to continue living in the same home during the 12 months before applying for divorce. This is known as ‘separation under the one roof’. If this applies to your situation, you need to prove to the Court that you were separated during this time.

For further information please visit the Family Court web site

http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Publications/
Family+Law+Courts+publications/Separated+but+living+under+one+roof
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We want to divorce but have been married less than two years. We understand we have to do certain things, what are they?

If you have been married less than two years and want to apply for a divorce, you must either:

attend counselling with a family counsellor or nominated counsellor to discuss the possibility of reconciliation with your spouse, or
if you have not attended counselling, seek permission of the Court to apply for a divorce.

The two years are calculated from the date of the marriage to the date of applying to the Court for a divorce. You and your spouse must also have been separated for at least 12 months before applying for a divorce.
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I married overseas - can I get a divorce in Australia?

If you were married overseas, you can apply for a divorce in Australia if either you or your spouse:

regard Australia as your home and intend to live indefinitely in Australia are an Australian citizen or resident, or
are an Australia citizen by birth or descent
are an Australia citizen by grant of an Australia citizenship
ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

You must provide the Court with a copy of your marriage certificate. If your marriage certificate is not in English, you need to file:

an English translation of it, and
an affidavit from the translator which:
states his or her qualifications to translate
attaches a copy of the marriage certificate
attaches the translated marriage certificate
states that the translation is an accurate translation of the marriage certificate, and

states that the attached copy of the marriage certificate is a true copy of the marriage certificate translated.
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I can’t find my spouse to serve a divorce application, what do I do?

If you have made a sole application, you need to serve the divorce application on your spouse. If you have taken all reasonable steps to serve your divorce application on your spouse and you are unable to do so, you can apply to the Court for:

substituted service, or
dispensation of service.

For further information please visit the Family Court web site
http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/
Publications/Family+Law+Courts+publications/
Are+you+having+trouble+serving+your+divorce+application
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Dispute Resolution

Dispute resolution provides you with an opportunity to reach an agreement without the need for a court order. This allows you to make your own decision and retain control of the outcome. Because all parties are involved in reaching a resolution, it improves the chances that the agreement will last into the future. You may also learn ways to improve communication with the other party/s that will assist you to resolve future disputes.

For further information please visit the Family Court web site
http://www.fmc.gov.au/pubs/html/dispute_resolution.html
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Pre-action Procedures

Before you file – pre-action procedure for financial cases

The Family Law Rules require prospective parties to genuinely try to resolve their dispute before starting a case.

The aim of the pre-action procedures is to explore areas of resolution and, where a dispute cannot be resolved, to narrow the issues that require a court decision. This should control costs and if possible, resolve disputes quickly, ideally without the need to apply to a court.

The pre-action procedure applies to:

anyone considering starting a case
anyone named as a respondent if a case is started, and
their lawyers (if any).

For further information please visit the Family Court web site
http://www.familycourt.gov.au/presence/connect/www/home/publications/
client_brochures/brochures/comms_brochure_before_you_file_financial

Before you file – pre-action procedure for action procedure for parenting cases

Property Settlement

When people separate, they usually need to sort out how to divide their assets (property) and debts. There are various ways this can be done:

you and your former spouse can agree on how your property should be divided without any court involvement
you can seek to formalise your agreement by applying for consent orders in the Family Court, or
if you cannot reach agreement, you can apply to a court for financial orders.

De facto relationships

This information about financial orders applies primarily to people who have been married. Property disputes between people who were not married (that is, in de facto relationships) must be dealt with by state courts, applying the laws of the relevant state or territory.
The exceptions to this are:

in the Australian Capital Territory and Northern Territory, where the Family Court (but not the Federal Magistrates Court) can deal with property disputes between partners in de facto relationships at the same time as hearing disputes about children, and
if you live in Western Australia the law is also different. For more information visit the Family Court of Western Australia's website located under website links.

How does a court decide?

Sections 79(4), and 75(2) of the Family Law Act 1975 set out the general principles a court considers when deciding financial disputes after marriage breakdown. These principles are based on:
1. The facts
2. A court’s discretion.

Findings of Fact

Before a court can decide what a fair division of assets is between parties, the court needs to make
decisions about what all the relevant facts are. Sometimes, there may be a dispute about the value of certain assets or liabilities. In most cases, there are different versions given by the parties about what occurred during a marriage or relationship. In the end, the court needs to make decisions about these disputes. This is referred to as making findings of facts.

Court’s Discretion

Under the law, a Court has considerable discretion when determining the respective property
entitlements of parties to a marriage or relationship. This means it is impossible for anyone to
predict with absolute accuracy what the outcome of such proceedings will be. In any matter, there will be a range of possible outcomes that will be considered to be “just and equitable” and one particular judge’s view may differ slightly from that of another. Nevertheless, neither view may be viewed as wrong as long as it is within the range of outcomes considered to be just and equitable.
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Child support

Parents are responsible for the financial support (maintenance) of their children. That responsibility is not changed by:

separation and divorce
where the children live or the amount of time they spend with a parent,
the remarriage of one or both parents.

If your children were born after 1 October 1989 or you separated after that date, your children are covered by The Child Support (Registration and Collection) Act 1988 and the Child Support (Assessment) Act 1989 which are administered by the Child Support Agency. You apply to the Child Support Agency for assistance in making child support arrangements.

For further information please visit the CSA web site www.csa.gov.au

The Child Support Act 1988
http://www.austlii.edu.au/au/legis/cth/consol_act/csaca1988427/
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Spousal Maintenance
Spousal maintenance (support) is when one person pays to help financially support their husband or wife (or their former husband or wife) because they are unable to adequately support themselves.
Under the Family Law Act, a person has a responsibility to financially assist their spouse, that is their husband or wife, if that person cannot meet their own reasonable expenses from their own income or assets. Where the need exists, both spouses have an equal duty to support and maintain each other as far as they can. This obligation can continue even after separation and divorce. The extent of the support depends on what the other spouse can afford to pay.

What does a court consider?
Spousal maintenance is not automatic. In deciding a maintenance application, a court considers the needs of an applicant and the respondent's capacity to pay. A court considers the following about both of you:

your age and health

your income, property, and financial resources

your ability to work

what is a suitable standard of living,

if the marriage has affected your ability to earn an income.

A court also takes into account with whom the children (under 18 years of age or adult children who are disabled) live

For further information please visit the Family Law Act 1975 section 74,
Power of court in spousal maintenance proceedings

http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s74.html
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