divorce application in the federal circuit court
either you or your spouse individually or jointly, may apply for a divorce after a 12 month separation period. it is done by way of written application filed in the federal circuit court of australia.
A prescribed application form is used. A filing fee is payable. This fee may be waived depending on the financial circumstances of the applicant. Your marriage certificate must also be filed. If the original is not available, a copy can be obtained from the Registry of Births, Deaths & Marriages.
The divoce application must then be served upon the other spouse - called "the respondent". The proper serving of the application is important as the Court must be satisfied at the hearing that the respondent has personally received the application, unless it is a joint application.
In the event the respondent cannot be personally served with the application, then the applicant may apply to the court for permission to give the respondent some other form of notice of the application.
The application must include details of the marriage and of the breakdown of the marriage including the date of separation. If there are children of the marriage under the age of 18, it must also contain sufficient details to allow the Court to determine whether proper arrangements have been made for them.
If you were born overseas, the court must also be satisfied either you are now an Australian citizen and domiciled in Australia, or have been ordinarily resident in Australia for the past 12 months.
Where you have been married for less than two years at the time of the filing of the application a certificate from a counsellor must be filed indicating that you and your spouse have considered reconciliation with the assistance of the counsellor. Alternatively, you may ask the Court to waive the counselling requirement in special circumstances.
The application for divorce will be listed for hearing approximately six to eight weeks after it is filed. The application must be served on the respondent at least 28 days before the hearing or 42 days before the hearing when the other party is served outside of Australia. The respondent may attend the hearing to dispute whether the parties have been separated for more than twelve months or whether appropriate arrangements have been made for the children. Generally however, the respondent does not appear at the hearing.
As the applicant, you will need to prove that your spouse has been properly served within the required time. This can be proven by the respondent attending the hearing and confirming receipt of the papers. In the alternative, the applicant or their lawyer may file an Affidavit of Service sworn by the person who served the Application (this person cannot be the applicant spouse). Service can be effected by post provided the respondent signs an Acknowledgement of Service within the time periods for service.
The Registrar may also ask questions about any aspect of the application, including the arrangements for any children. If there are no children of the marriage under 18, or if it is a joint application, the parties don't need to attend the hearing. However it is a good idea to attend the hearing to ensure any problems can be dealt with.
If the Court is satisfied that the applicant has complied with the requirements of the Family Law Act for divorce, a Decree Nisi of the dissolution will be granted at the hearing. You are still legally married until the divorce becomes final. The divorce will become final (Absolute) one month and one day after the hearing.
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.