How to divorce
When a marriage finally comes to an end in Australia, it is defined as divorce also known as dissolution of marriage and it is handled by the Federal Circuit Court (Federal Magistrates Court) of Australia.
If you can satisfy the court that you and your spouse have been separated for more than 12 months and there is no reasonable possibility that you will get back together, you are likely to succeed in your divorce application. The court is not concerned as to whose fault it is or why you believe your marriage is no longer viable.
The first step in applying for a divorce is filing an Application for Divorce in the Federal Circuit Court. You can apply for a divorce on your own (sole application) or with your spouse (joint application). If you are a sole applicant, you have to serve the application for divorce on the other party. If you can’t locate your spouse, and you can prove that you have taken all the necessary steps to locate him or her, you can apply for an order to dispense with service, or for substituted service. In a joint application you do not have to serve the papers on each other.
You can apply for a divorce in Australia if either you or your spouse:
- Regards Australia as your home and intend to continue living in Australia – you must be lawfully present in Australia
- Is an Australian citizen by birth or descent. If you were born outside of Australia and one of your parents was a citizen and your birth was registered in Australia.
- Is a citizen by grant of Australian citizenship.
- Ordinarily lives in Australia and have done so continually for a period of 12 months immediately before filing for divorce
The fact that you were married in Australia is not enough to apply for divorce in Australia. You have to meet the criteria for citizenship mentioned above.
To succeed with the divorce application you need to include a valid marriage certificate. It does not have to be original or certified. You can provide your ceremonial certificate or one provided by Births Deaths and Marriages. If your marriage certificate is not in English, you must have it translated. A NAATI accredited translator must do the translation and you need to include an Affidavit of Translation of Marriage Certificate.
If you have been married for less than two years, you will have to participate in prescribed counselling before you can file for divorce. You will need to include and file a counselling certificate.
You need to pay a filing fee at the time of filing the divorce application. You might be eligible for a reduced fee if you can provide evidence of financial hardship or fall into one of the other eligibility categories, for example, you hold a health care card, or legal aid was granted to you. To apply for a reduction due to financial hardship, you have to complete the Application for reduction of payment of divorce or decree of nullity – financial hardship. The court will then consider your application. If you are filing a joint application, both parties must be eligible for a reduced fee. If only one party qualifies, the full fee must be paid.
After filing the Application for Divorce a hearing date will be set for your case. Attendance at the hearing is mostly optional. You do not have to attend if there are no children under the age of eighteen, or if you made a joint application (even if there is a child under eighteen). If you are a sole applicant, and you have children under eighteen, you are required to attend. Attendance is also required if you indicated on the application that you wish to attend. You should attend, although it is not required, if you couldn’t locate your spouse and you applied for an order to dispense with service, or substituted service. It is also advisable to attend if you have to supply additional affidavits relating to separation under one roof or marriages that lasted for less than two years.
You can apply to appear by telephone if it is difficult for you to attend in person. Follow up on your request if you don’t receive confirmation before the court date. If you are required to attend, or you choose to attend, prepare yourself for the hearing by reading up on the procedure or watch a court tour video to know what to expect.
To succeed in your application for divorce you have to satisfy the court that you and your spouse have been legally separated for 12 months. You either lived apart for that time or were separated under one roof. You do not have to provide evidence when you apply, but you may have to provide evidence at a later stage. The court must be satisfied that your marriage has broken down irretrievably and that there is no reasonable likelihood that you will get back together. If you apply on your own, be prepared to provide the court with evidence to show that you or your spouse, or both of you, had the intention of ending the marriage on the date of separation.
If you were separated but lived under the same roof for a part of the 12 month period, you need to satisfy the court that there was a significant change in the marriage that amounted to legal separation. You will provide such evidence by preparing and filing an affidavit. If it is a joint application, both parties must file an affidavit. You could also file a third party’s affidavit to corroborate your evidence, regardless of whether it is a joint or sole application.
If there are children from the marriage the court will not grant the divorce unless it is satisfied that proper arrangements are in place for the wellbeing of the children. You have to provide details of care arrangements, schooling, after school, health, contact with parents, financial support and so on. The law defines a child of the marriage as any child of you and your spouse, born before the marriage or after the separation. It includes a child adopted by you and your spouse, or any child that you and your spouse treated as a member of your family before the final separation.
Nowadays it is possible to apply for divorce online. You register on the Commonwealth Courts Portal and eFile an application for divorce. You can also efile any further documents needed to support your application. Take note: If you are not eligible for a reduction of fees-general, but want to apply for a reduction due to financial hardship, you cannot efile the Divorce Application.
Getting a Divorce Order is probably the easiest part of dissolving your marriage relationship. You can get initial free legal advice at the Family Relations Advice Line, a Legal Aid advice line or at a community legal centre. You can apply for a divorce without a lawyer, but if you need help to complete the divorce application or if you are not sure if you would succeed with your application, get legal advice. A lawyer can explain whether you are eligible for a divorce, assist you with the process and help you to understand your rights and responsibilities.
Application for Divorce Kit includes step-by-step instructions on how to complete the application.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.