Divorce
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DIVORCE IN AUSTRALIA
Divorce in Australia follows the ‘no-fault’ principle. This means that the Court does not need to know the reason for divorce, just that the marriage has broken down irretrievably and there is no likelihood of reconciliation. When the parties apply for divorce, this does not determine the parenting or financial matters between the parties, it simply recognises that the marriage has ended. However, if there are children of the relationship, the Court will need to be satisfied that proper arrangements have been made for them.
Applying for Divorce
Before you can apply for divorce, you and your ex-spouse need to satisfy the Court that you have been separated for at least 12 months and there is no reasonable likelihood of resuming married life. It is possible to be separated under the one roof.
If you have been married less than two years, you will also need to file a counselling certificate. To obtain a counselling certificate you will need to attend counselling. If you are unable to attend counselling with your spouse, you will need to file an affidavit with your application for divorce to explain to the Court why you are unable to attend counselling with your spouse. The two years is calculated from the date of the marriage to the date of applying to the Court. You and your spouse must also have been separated for at least 12 months before applying for divorce.
You can apply for divorce if either you or your spouse:
- Regard Australia as your home and intend to live in Australia indefinitely;
- Are an Australia citizen by birth, descent or by grant of Australian citizenship; or
- Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
If you were married overseas, you can apply for a divorce in Australia if either you or your spouse:
- Regard Australia as your home and intend to live indefinitely in Australia and are an Australian citizen or resident;
- Are an Australian citizen by birth or descent;
- Are an Australian citizen by grant of citizenship; or
- Ordinarily reside in Australia and have done so for 12 months immediately before filing for divorce.
Along with your application for divorce, you must also provide a copy of your marriage certificate. If your marriage certificate is not in English, you will need to file an English translation of it, and an affidavit from an accredited translator.
There are two different ways in which the parties can apply for divorce, either together as joint applicants, or individually, as a sole applicant. The application is the same, however the process and service requirements are different.
Joint Application
For a joint application, both parties need to sign the application for divorce and are known as joint applicants. Once it has been filed with the Court, the Court will list the application for hearing. There is no need to serve the application for divorce. Court attendance is not required if you file a joint application, unless you select that you wish to attend when completing the application.
Sole Application
If you make a sole application, you are known as the applicant and the other party is known as the respondent. Only the applicant is required to sign the application for divorce. The applicant will then be required to serve the application for divorce on the respondent. If the application for divorce is not served correctly, the Court will not consider the application for divorce. Court attendance is not required if there are no children of the marriage. However, if there are children under 18 years of age, the applicant is required to attend Court.
Service of Divorce Documents
Service of the application for divorce is a requirement under Chapter 7 of the Family Law Rules. Service is required to notify the other person of the application for divorce involving them. You can serve your spouse either by hand or by post. If you are unable to personally serve your spouse, you can engage a process server to personally serve the documents.
When serving the application for divorce, you must serve the following documents:
- A sealed copy of the Application for Divorce with the Notice of Application for Divorce attached to the front;
- A sealed copy of the Affidavit of E-filing;
- A copy of the Marriage, families and separation brochure;
- An Acknowledgment of Service (divorce);
- Any other documents relating to your application for divorce (except any passport / citizenship / marriage certificates / reduction of fees form / concession cards);
- A letter asking your spouse to sign the acknowledgment of service at Part C and return it to you (if served by post); and
- A stamped self-addressed envelope for the return of the signed acknowledgement of service (if served by post).
If the application for divorce has been served by post, and the Acknowledgment of Service is returned, you will need to complete an Affidavit of Service (by post) and file it, along with the signed Acknowledgment of Service.
If the application for divorce was served by hand, at the time of service, you (or the process server) will have the respondent sign the Acknowledgment of Service. You will then need to file an Affidavit of Service (by hand) (or have the process server complete the affidavit) and file it, along with the signed Acknowledgment of Service. If the application for divorce is served by a person, other than you, you will also need to complete an Affidavit Proving Signature.
Service of Divorce Documents
Service of the application for divorce is a requirement under Chapter 7 of the Family Law Rules. Service is required to notify the other person of the application for divorce involving them. You can serve your spouse either by hand or by post. If you are unable to personally serve your spouse, you can engage a process server to personally serve the documents.
When serving the application for divorce, you must serve the following documents:
- A sealed copy of the Application for Divorce with the Notice of Application for Divorce attached to the front;
- A sealed copy of the Affidavit of E-filing;
- A copy of the Marriage, families and separation brochure;
- An Acknowledgment of Service (divorce);
- Any other documents relating to your application for divorce (except any passport / citizenship / marriage certificates / reduction of fees form / concession cards);
- A letter asking your spouse to sign the acknowledgment of service at Part C and return it to you (if served by post); and
- A stamped self-addressed envelope for the return of the signed acknowledgement of service (if served by post).
If the application for divorce has been served by post, and the Acknowledgment of Service is returned, you will need to complete an Affidavit of Service (by post) and file it, along with the signed Acknowledgment of Service.
If the application for divorce was served by hand, at the time of service, you (or the process server) will have the respondent sign the Acknowledgment of Service. You will then need to file an Affidavit of Service (by hand) (or have the process server complete the affidavit) and file it, along with the signed Acknowledgment of Service. If the application for divorce is served by a person, other than you, you will also need to complete an Affidavit Proving Signature.
Unable to Serve a Divorce Application
If the respondent will not sign and return the acknowledgment of service or you cannot locate the respondent, even after you have taken all reasonable steps, you can apply to the Court for an order for:
- Substituted service, which allows you to serve court documents on a third person who the Court is satisfied will bring the documents to the attention of the respondent, or allows you serve by post rather than by hand (without the need for a signed acknowledgment of service); and
- Dispensation of service, which allows the Court to dispense with the requirements for service.
To apply to the Court for an order seeking either substituted service or dispensation of service, you will need to file an Application in a Case along with an Affidavit setting out the steps you have taken to serve or locate your spouse and otherwise comply with the requirements of Rules 6.14 and 6.15 of the Federal Circuit Court Rules.
Opposing a Divorce Application
Given Australia follows the ‘no-fault’ principle, there are limited opportunities to oppose a divorce application. You can only oppose a divorce where:
- There has not been 12 months separation as alleged in the application; or
- The Court does not have jurisdiction.
If you do not want the divorce granted, you must complete and file a Response to Divorce and appear in person on the hearing date. You need to set out the grounds on which you seek the dismissal in the Response to Divorce.
Things to Consider
If you intend to remarry, you should not make firm plans on a specific date until the divorce order is finalised. In most cases, the hearing of the application may be several months after the application has been filed and the divorce takes effect one month and one day after the divorce granted. You should also not assume that the divorce will be granted on the first court hearing, as the Court may require further information and the application may be listed for a new hearing date.
TWC Lawyers specialises in divorce, including overseas marriages. For specialist divorce advice from a family law lawyer, contact us on (07) 5522 5777.