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Applying for Divorce: what you need to know

Applying for Divorce: what you need to know

Published on May 21, 2020 by Kristie JamesKristie James

In 2018-2019 there were 44,342 Applications for Divorce filed in Australia. Internationally, in the aftermath of COVID-19, a number of Chinese cities have reported an unexpected increase in the number of Applications for Divorce filed. As we wait to see whether there will be a similar increase or not in Australia as a result of the COVID-19 pandemic, it seems appropriate to cover what you need to know about Divorce and how you can apply.

Can I apply?

You can apply if you and your spouse are separated.

What constitutes separation?

One of you, either you or your spouse, have told the other that the marriage is at an end.

When can I apply?

12 months and 1 day after the date of your separation.

Who applies?

You can make an application on your own or jointly with your ex-spouse.

Can anyone apply for a Divorce in Australia?

If you are an Australian Citizen by birth or grant or if you have been lawfully present in Australia, regard Australia as your home or have been a resident for the 12 months prior, you can apply.

But I was married overseas; can I apply for Divorce in Australia?

If you meet the criteria for the Court to apply jurisdiction (see above), then yes.

If your Marriage Certificate is in a language other than English you have to file a translated version and an Affidavit of the translator with your Application.

What you need: 

This will depend on your circumstances but typically, you need your Marriage Certificate, evidence of any name change and if you are a citizen by Grant, your Citizenship Certificate.

Where can I find the Application for Divorce?

You can do it online.

See:

http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/how-do-i/divorce/apply-for-a-divorce/apply-for-divorce

How much does it cost?

At the time of this article, the filing fee is $910.

However, if you hold a health care card or will suffer hardship if you are required to pay the full fee, you may be eligible for a reduced fee. The reduced fee is $305.

What if we have been married less than two (2) years at the time of applying?

You need to attend counselling to discuss the possibility of reconciliation and obtain a certificate to say you have undertaken this process before you can apply.

If you have not attended counselling and there exists are some set of special circumstances, you can apply to the Court for permission to divorce within two (2) years of your marriage.

We have been living under the same roof even though we are separated.  Does that matter?

You have to supply the Court with more information.

If you have been separated but living under the same roof in the twelve (12) months prior to applying for Divorce, you and your ex-spouse (if applying jointly) or you and an independent witness (if filing on your own) will need to file an Affidavit.

See:

http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/reports-and-publications/publications/separation/separated-but-living-under-one-roof

We have kids, does that matter?

Yes, if they are under the age of 18.

Before it will grant a Divorce the Court has to be satisfied that there are appropriate arrangements in place for the care of your children. It is important you include as much information about your children in Part F of your Application for Divorce.

I’ve completed the Application, what do I do now?

The Application needs to be signed before a suitable witness, see Part G of the Application.

You should then e-file your Application for Divorce via the Commonwealth Courts Portal.

I’ve filed, now what?

On filing you will be given a Court Hearing date.

If you have made a sole application, you need to have the sealed Application for Divorce served personally on your ex-spouse by a process server.

The process server will complete an Affidavit of Service which has to be filed in Court.  If your ex-spouse signs the Acknowledgement of Service given to them by the process server, that document also has to be filed in Court.

I can’t find my ex-spouse?

You must make all reasonable attempts to locate and serve your Application for Divorce on your ex-spouse. If this is not possible, you can ask the Court for substituted service or to dispense with service.

I’ve been served an Application for Divorce and I don’t agree with it, what can I do?

File a Response to an Application or Divorce.  You may also have to file an affidavit at a later stage.

Do I have to attend Court?

If you make a sole application and you have children under the age of 18 and/or there exists some set of circumstances such as a dispute about the date of your separation or you and your ex-spouse have been living under the same roof, then yes.  Otherwise, no.

What happens after the hearing?

If granted, your Divorce will become final one month and one day after the Hearing.

How does it affect my property settlement?

You have twelve (12) months after the date your Divorce becomes final to initiate proceedings in the Court.  After that time you can only file an application for property settlement if the Court gives you leave to do so.

Do I need a Lawyer?

The Court has and continues to do its best to make the process of applying for Divorce simple, user friendly and streamlined so that you can apply without the assistance of a Lawyer. However, it can be daunting to try and navigate all the steps involved in getting a Divorce. If you need help call us on 1800 059 278.

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Kristie James, Associate

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