How to get a divorce in Australia
Divorce is the legal procedure which brings about an end to a marriage.
The term “divorce” does not refer to distributing the matrimonial property, which is referred to as “property settlement” or to issues surrounding the care of the children, which are referred to as “parenting matters”.
However, you do not need to be divorced before you can start finalising your property and parenting matters.
In Australia, we have a “no fault” divorce system. Accordingly, you do not need to prove that either party was at fault, and circumstances such as extra-marital affairs or domestic violence within the marriage won’t be relevant to your divorce.
The single ground for divorce in Australia is that the parties have separated and lived separately and apart for a continuous period of not less than twelve months before filing the divorce application.
The parties can be separated under one roof, although there may be some practical difficulties in evidencing the period of separation if any questions arise. When applying for a divorce, parties who have lived together under one roof, will need to file affidavits in the Court explaining the circumstances of the separation under one roof.
Let’s look at the practical steps in applying for a divorce.
There are two types of application, the first being a joint application by both parties and the second type being a sole application where one party alone makes the application.
Let’s look at joint applications first, because they are the easier of the two.
To make a joint application for divorce it is simply a case of both parties completing the application form, and executing it before a qualified witness. A qualified witness means a lawyer, Justice of the Peace, Notary Public or Commissioner for Declarations.
You can get the divorce application form from the website www.familylawcourts.gov.au and following the links through to the forms.
When completing the form, you will see that it is for the most part divided down the middle in two halves, and the husband and wife will each fill in their own side of the form.
Having completed the form and, once it has been properly witnessed, it then needs to be filed in the Federal Circuit Court of Australia.
There is a Court filing fee which is quite substantial, and which changes from time to time so I would recommend that you go to the familylawcourts.gov.au website to identify the current filing fee.
You can then file electronically through the Commonwealth Courts Portal which is www.comcourts.gov.au, or alternatively you can take the original documents to the Court and hand it over the counter in triplicate. When you file a document “in triplicate” this means you had over the original signed document and two photocopies. The Court will then retain the original signed document and return the two photocopies to you which will have the Court’s stamp on them and usually have a hearing date on the top right hand corner. Those copies are for you and your partner to keep.
You also need to provide the Court with a copy of your marriage certificate at the time of filing.
Ordinarily the hearing date will be a couple of months after filing, however Court times vary depending on the workload.
If it is a joint application for divorce you won’t need to attend at the hearing date, as the matter will be dealt with in the Court by reference only to the filed application.
If you have filled out the forms correctly then the Court will make an order referred to as a “Decree Nisi”, and then one month after the Decree Nisi the final divorce order will issue and you will be divorced officially as of that date. The Court will post out a copy of the Divorce Order to both of the parties.
You can see that the process can take at least three months, and you should take this into account and start your divorce application early if you are hoping to re-marry in the near future.
You also need to be aware that once you have a final divorce, you have a statutory time limit of twelve months in which to commence any Court proceedings in respect of your matrimonial property matters, after which you cannot file without leave of the Court. I would suggest you obtain legal advice if you have any queries regarding this.
Now looking at the second type of divorce application, being a sole application by one of the parties to the marriage, the process is somewhat more complex.
Accordingly, if it is a sole application I strongly recommend that you seek the services of a lawyer to assist you.
Although there is a Divorce Application Kit available on the Family Law Courts webpage, unless you are good with paperwork and have some attention to detail, the experience of bringing a sole application for divorce can be stressful. In addition, if there are children under 18 years of age, an appearance in the Court will be necessary on a sole application.
A sole application also requires the additional steps of serving the other party with Court documents and providing the Court with properly sworn proof of service.
Normally you would need to bring a sole application if you are unable to communicate amicably with the other party, if the other party is unreasonable, or if there are complicating factors such as family violence or mental health issues.
I trust this information is useful. If you need any assistance please don’t hesitate to contact Matthew Love Family Lawyers.