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  • Writer's pictureSianne Way

DIVORCE

Updated: Nov 3, 2022


Authored by:

Sianne Way

SENIOR ASSOCIATE | +61 0431 276 197 | sianne.w@juluislawyers.com.au


Introduction


Marriage may be dissolved by one of three causes of action:

1. divorce;

2. decree of nullity; or

3. declaration as to validity.


This article will focus on divorce.


Divorce is the formal ending of marriage which is characterised by the irretrievable breakdown of marriage. In Australia, this is the only “ground” for divorce; it is not necessary for the parties to divorce to show any “fault.”


The irretrievable breakdown of marriage is evidenced by the parties living separately and apart within the meaning of the Family Law Act 1975 for a continuous period of not less than 12 months immediately preceding the filing of an application for a divorce order.


Separation


“Separation” involves three elements:

  • an intention to separate (that is, to break the matrimonial relationship);

  • action upon that intention or act as though the relationship has come to an end; and

  • communication of such intention to the other party.


Parties can remain under the same roof and still be “separated.” In this case, the court will normally require an affidavit (a written statement) detailing that an applicant does not share any of the usual activities of a marriage. Sometimes, corroborative evidence from others, again by way of an affidavit, may also be needed.


Who can apply?


A divorce application can either be made solely by one party to the marriage or jointly, with the other party to the marriage. Where one party makes the application, they will be known as the applicant and the other party will be known as the respondent. Where a joint application is made, both parties are referred to as joint applicants.


To apply for a divorce order in Australia, either party must have some “link” to Australia, for example, residency in Australia (not necessarily citizenship), even if the parties were married overseas.


An application for a divorce order is made online, through the Commonwealth Courts Portal.


As indicated above, there is no need to prove that one party has caused the relationship to end, it is enough to show that it is not working anymore which is demonstrated by being separated for 12 months.


The application fee is $940.00 which must be paid when filing an application. It is possible to seek a fee reduction or an exemption if where a party has certain concession cards, or they can demonstrate financial hardship.


Special Considerations


Where parties have been married for less than 2 years, they must consider reconciliation with a specified person who must complete and sign a certificate which is to be filed with the divorce application.


Further, where there are children of the married who are under 18, the court must be satisfied that proper arrangements have been made for the care, welfare, and development of those children otherwise the application will generally not proceed.


A court may adjourn the divorce proceedings if it is unsure that the arrangements in place are appropriate in all the circumstances and may even look to seek a report from a family counsellor regarding the proposed arrangements.


Once the court is satisfied that appropriate arrangements in place, they may make a declaration under Family Law Act 1975 s 55A that the divorce order may take effect.


Documentation


Documents that must be filed on the Commonwealth Courts Portal include:

  • Application for Divorce (being the evidence of the applicant/s)

  • Affidavit for eFiling

  • Documents supporting the existence of the marriage, evidence of a “link” to Australia and a Counselling Certificate (if applicable).

  • A copy of the Marriage, Families, and Separation brochure (available from the Federal Circuit and Family Court of Australia)

  • Acknowledgement of Service (Divorce) where one party has made the application.

  • Any other applicable documentation, given a party’s individual circumstances.


Where a marriage certificate is not in English, this will need to be translated by a certified translator along with an affidavit from that translator.


Serving court documents


Where there is only one applicant, the application must be served on the respondent. The applicant will need to complete an Affidavit of Service (whether the application is served by post or by hand). Unless there is evidence of service of the documents, it is unlikely the court will be able to proceed with the application until evidence is provided.


The application needs to be served at least 28 days before the hearing where the respondent is in Australia, or at least 42 days before the hearing if the respondent lives overseas.


A respondent will need to sign the Acknowledgement of Service (Divorce). Where a respondent refuses to sign an Acknowledgement of Service, an applicant may elect to use a “process server” to serve the application on the respondent. Where a process server is used, they will need to sign an Affidavit of Service by hand and a further affidavit proving signature.


Where a respondent cannot be found, an application for substituted service (serving the documents on someone else who can give them to the respondent) may be considered or even an application for dispensation of service where you do not need to serve the documents at all. Dispensation of service, however, will only be granted in exceptional circumstances. An applicant would need to show that they have exhausted all options available to find the respondent before the court will proceed on this basis.


Any application for dispensation or substituted service will be heard at the same time as the divorce hearing.


The hearing


Attendance at a hearing is necessary where:

  • There are children under 18; or

  • An application for substituted service or dispensation of service is filed; or

  • A Response to Divorce has been filed.


In other situations, the hearing will take place without the parties.


Outcome


Where the divorce application is successful, a divorce order will take effect 1 month and 1 day after the making of the divorce order (or after a Declaration pursuant to Family Law Act 1975 s 55A).


It is possible, even at this stage to reconcile as recission of the divorce order can take place following the making of an order but before the order takes effect (within the 28 days) or in circumstances where there appears to have been a miscarriage of justice.


Summary


LGee & Julius Lawyers can prepare and file the divorce application on your behalf and attend the hearing at court for you (where applicable).


It is worth noting that an application for divorce is separate from property settlement applications and parenting proceedings. Provisions must be made for the care, welfare, and development of any children under 18 before a divorce order may take effect.


Whilst it is possible to finalise these issues prior to filing for a divorce, once the divorce is completed, you have a period of 12 months to apply to the court for property settlement. You will need approval from the court to apply after this time.

Contact LGee & Julius Lawyers for assistance with the process.

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