Choosing to end a marriage is challenging

Choosing to end a marriage is challenging. You will need to deal with huge emotional issues and make many tough decisions. You also need to know your legal rights and responsibilities.

This Q & A will answer some of the basic issues that are associated with divorce law in Australia.

If someone got married in India or overseas and they have a marriage certificate from overseas, can that person make an application for divorce in Australia?

It does not matter where the marriage took place. The fact that the person was married overseas will not preclude that person from making an application for divorce. The fact that the person was married in India does not mean that that person will have to travel to India to make an application for divorce.

When can a person make an application for divorce and what are the legal requirements?

The first requirement is that the person making the application for divorce must have jurisdiction in this country. The person making the application need not be an Australian citizen or Australian resident. The person making the application could rely on the fact that that person ordinarily lives in Australia and has done so for a period of 12 months immediately before filing this application.

Or alternatively, the person could, if that person regards Australia as his or her home and intends to live indefinitely in Australia. As you are aware, most of the students would have come into this country have come with the precise intention of making this country his or her home and has intention of making an application for bridging or like Visa to reside in this country. If the intention to reside in this country is there then the Court has got jurisdiction to hear the application.

What is the other main requirement?

The person making the application must be in a position to allege that he or she has been separated from the spouse for at least a period of 12 months. The application can only be made after the 12 months has elapsed. The definition of “separation” is rather wide. It is possible for a person to secure a divorce even though that person has been residing under one roof with the spouse. It is possible for there to be a separation between the parties if the parties have been living separately, but still under one roof.

Are there any special requirements in order for the parties to secure divorce when living separately under one roof?

Yes, the person has to swear an affidavit swearing to the effect that the parties have been living separately but under one roof. In that instance, the Court has to be convinced that the parties have lived in separate rooms, have generally done their own things, such as cooking, cleaning, washing etc. They have not had an active social life together including sexual relationship with each other. It should be understood that one single act which is contrary to the matters that are listed above would not prevent a person from seeking to secure divorce whilst living under one roof.

Is there any other legal requirement such as length of the marriage?

If the parties have been married for less than 2 years then the legal requirement is that both parties should attend counseling and secure a certificate from the counselor that they have attempted reconciliation.

If it is not practicable such as one party is overseas and the other party is here, or the circumstances of the separation are such that any attempt to counseling would be futile then the Court has discretion to grant divorce notwithstanding non-provision of the counseling certificate. If an exemption is sought in relation to this legal requirement, then an affidavit will have to be sworn to establish the exceptional circumstances.

Do both parties have to be in Australia and does the divorce application have to be served on the spouse?

No. Both parties do not have to be in Australia. The divorce application would have to be served and unless co-operation can be secured from the respondent spouse that he/she will sign an acknowledgment of service of receiving the document, then the divorce application would have to be served personally. The divorce application can be served by professional process server or else it can be served by a relative or friend. The person serving the document on the respondent spouse will have to swear an affidavit of service.

What if the applicant does not know the whereabouts of the spouse and the respondent spouse has disappeared or returned to India and the address is not known? In that situation, is it possible to secure a divorce?

Yes, it is possible to make an additional application which can usually be listed at the same time as the hearing seeking leave of the Court to have the requirement for service cancelled. The Court may make an order for substituted service and by that it means that the Court may allow the applicant to serve the divorce application on relatives or employers or it could require that the applicant make attempts to do an electoral roll search and other such enquiries.

Are the children’s issues also determined by the Court at the divorce hearing?

The divorce hearing is a separate matter and the court will not deal with any issues pertaining to custody or contact but before the Court grants the divorce the Court would be interested in securing information about the welfare of the children ie financial support, schooling issues and health issues.

The Court has power to not grant divorce if the Court is of the view that the parties are not generally taking care of the welfare of the children but generally the Court will grant divorce even if the Court is not satisfied that both parties have taken responsibility for the children of the marriage.

Is it possible for both the husband and the wife to make a joint application for divorce and is it possible for the parties to seek convenient way of securing a divorce?

It is possible for both parties to make a joint application for divorce and both parties would be swearing or affirming an affidavit as to the date of the separation. If it is subsequently discovered that both parties have indeed been living together until recently and have invented the separation date in order to secure divorce, then both parties could potentially face prosecution for perjury.

Does the applicant and the other spouse have to go to Court?

If the parties do not have any children, and there are no complicating issues such as the marriage being less than 2 years or that the divorce application cannot be served, then there is no requirement to attend Court. However, if there are children of the marriage, then the applicant or his lawyer has to attend Court. The responding spouse does not have to attend Court and would only attend Court if the Respondent spouse opposes the divorce on the grounds that the separation had not taken place for 12 months.

Is the divorce application costly?

To start with, there are filing fees in the sum of $845.00 which must be paid to the Federal Circuit Court. Unless the party can establish that he/she is on a pension or would face hardship in order to secure the fees, the fees would normally be payable.

The professional legal fees would vary depending on whether there are any children of the marriage or whether the marriage is less than 2 years and whether an application needs to be made to the Court to secure cancellation of the service requirement or secure substitute service.