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16 September 2015

Getting your Application for Divorce Right

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Possibly the simplest application you can file in the Family Law Courts is the Application for Divorce.  The grounds for and requirements of a divorce are fairly straight forward, and the documents you need to file are not overly complex.

Given same, the humble Divorce is arguably the easiest Application to get completely wrong.  Either the documents are completed incorrectly, calculations of time are incorrect, service hasn’t been effected correctly or the Affidavit evidence is defective.

If your Application or evidence is defective, the Court will not grant your Divorce.  Rather, your hearing will be adjourned and you will be directed to file further evidence addressing the matters in dispute.  If there is an issue regarding the grounds for your application, your matter may be referred to a Judge for hearing and/or be dismissed (particularly if your Application is adjourned several times).

So what are the requirements for a Divorce?

  1. First, is your marriage legal?

There are specific requirements that must be met to ensure your marriage is legal.  If you are in doubt as to the status of your relationship, speak to your solicitor regarding same.

Hot tips:

  • If you married overseas, your marriage will generally be recognised as valid in Australia if:-
    • It is valid under the law of the country where the marriage occurred
    • The parties are not same-sex (same-sex marriages are not legal in Australia)
    • The parties are at least 18 years of age
    • Neither party is married to any other person at the time of marriage
  1. Secondly, do you meet the criteria to file an Application for Divorce?

Either you or your spouse must:-

  1. Be an Australian Citizen by birth, descent or grant of citizenship; or
  2. Regard Australia as your home and intend to live in Australia indefinitely; or
  3. Ordinarily live in Australia and have done so for at least 12 months immediately before making your Application for Divorce.

Hot tip:    

  • If your only ground is that you are an Australian citizen by grant of citizenship, particularly if you live overseas, you should file a copy of your Citizenship Certificate with the Court.
  1. Thirdly, have you and your spouse lived separately and apart for a period of at least 12 months and is there no reasonable likelihood of reconciliation?

Hot tips:    

  • At least 12 months means exactly that. For example, if you separated on 1 January 2015, you will be eligible to apply from 2 January 2016.
  • You can live separately under one roof during all or part of the 12 month period, however you will need to file Affidavit evidence regarding same.
  • You can resume cohabitation for one period of up to 3 months during the 12 month period. Any more or any longer will re-set the separation clock.

If you have been married for less than 2 years at the time of filing your Application for Divorce, you must attend on a family counsellor to consider reconciliation, and provide Affidavit evidence of same.  If you have not attended counselling, you will need the leave of the Court to file your Application for Divorce.

If you have children under the age of 18 years at the time of filing your Application for Divorce, you will need to satisfy the Court that proper arrangements have been made for the care, welfare and development of your children.  If proper arrangements have not been made, you will need to convince the Court that the divorce order should be made.

Once completed, your Application is filed in the Federal Circuit Court of Australia (or if you are in WA, Family Court of Western Australia).

Filing done.  Now what about service?

Unless you filed a joint application, you will need to serve your spouse with a sealed copy of your Application for Divorce together with a copy of the brochure,”Marriage, Families and Separation” and an Acknowledgment of Service form.

If you serve your spouse by posting the documents to them (or their legal representative), they will need to return the Acknowledgment of Service to you.  You will need to file same with your Affidavit of Service and Affidavit proving the signature is that of your spouse.  If they do not return the Acknowledgment of Service, you will have difficulty proving to the Court that service has been effected.

Alternatively, you can arrange for your spouse to be served personally.  Service can be effected by any person over the age of 18 years other than the Applicant.  That person will need to file an Affidavit confirming that service has been effected.

Hot tip:

  • Service must be effected by no later than 28 days before the hearing date if your spouse is in Australia, or 42 days before the hearing date if they are outside Australia.

Do I need to go to the Court hearing?

If you filed a joint Application for Divorce, or do not have children under the age of 18 years and you indicated in your Application that you do not wish to attend the hearing, the Court will notify you after the hearing date the outcome of your hearing.

If you have children under the age of 18 years or you indicated in your Application that you wish to attend the hearing, or your spouse filed and served on you a Response opposing the divorce, you will need to attend the hearing.

The Court usually grants a divorce at the first hearing date, provided that it is satisfied with the following:-

  1. The Court has jurisdiction to hear the matter
  2. The marriage is valid
  3. You have served your spouse within the time frame specified by the Rules (or the Court has granted leave to shorten the time period)
  4. You have established the grounds for a divorce
  5. (Where there are children under the age of 18 years) proper arrangements are in place

If the divorce is granted, it will take effect one month and one day after the date of hearing.  The Court will issue the Divorce Certificate at that time.

Hot tip:

  • Divorce Orders do not finalise matrimonial property and maintenance matters between parties.  If you wish to resolve property and/or maintenance matters, you will need to finalise same (or issue proceedings) within 12 months from the date of the Divorce Order.

For assistance with your family law matter please contact our office for an appointment with one of our solicitors.

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