A lot of disputed couples often ask themselves ‘what happens in a divorce hearing?’. These hearings typically address everything that happened during a couple’s divorce and what court orders are necessary before the hearing ends. There are two parties mainly involved in a divorce hearing. These include the applicant and the respondent.
Applicants are the ones applying or filing for a divorce order in the family court, while respondents are the people receiving the case. In some cases, couples may choose to file a joint application for a divorce. This typically results in couples not needing to attend court procedures since both couples agreed to split mutually and amicably.
If a spouse files a sole application for divorce, he/she must serve the approved documents to his/her partner. The Commonwealth Courts Portal will display the hearing details once they have approved the divorce order application. The details will include the date and time of the divorce hearing, the name of the registrar, and the judge who will hear the case.
Attend the Divorce Hearing in the Family Court
According to the Federal Circuit and Family Court of Australia, a divorce hearing is usually conducted electronically (through a telephone or video link). Parties of a divorce case won’t need to attend the divorce hearing in person or have legal representation if the divorce hearing will happen electronically. The Federal Circuit Court will require electronic court attendance if:
- A party has filed a sole application and he/she has a child under 18 at the time the application was filed
- A party indicated that they wish to attend a divorce hearing in their application
- Either party has objected to the divorce if one party is absent
- The respondent files a response to divorce in order to oppose the application
Parties can still attend a divorce hearing even if they are separated and living under the same roof. However, they must prove to the court that their relationship has broken down and that they have set boundaries inside the home. Some examples of these boundaries are living in separate rooms and ceasing sexual activity.
Serving the Application to the Respondent
It’s required for people who applied for a sole divorce application to serve the divorce application to their spouse. A sole divorce application will require the applying spouse to put the receiving spouse’s address for service purposes. If the applying spouse is unable to locate their spouse and has taken all reasonable efforts in doing so, they may apply for a divorce order:
- To dispense with service
- For substituted service (allows a third person to bring the service documents to the receiving spouse)
Preparing for the Divorce Hearing
Divorce is never easy and it definitely takes an emotional and mental toll on the parties involved. Courts will take these matters very seriously and the results of the proceedings may change the life of both parties and any children involved.
Even if a party has a good chance of getting a favourable outcome, they must prepare before they attend the divorce hearing. Here are some tips for preparing for a divorce hearing:
1. Remain Honest
Honesty is something that the court will require, especially since parties will speak under oath before court proceedings start. Parties who state lies and destroy evidence during divorce proceedings will face severe consequences. Hence, parties should present facts, admit offences, and submit clean affidavits and statements.
2. Be Informed About Property Settlement and Spousal Maintenance
Property settlement is a process in which two parties to a divorce divide their finances and assets. Spouses typically have rights over each other’s property, assets, and finances after marriage. However, courts will take the following into account when dealing with property settlement:
- Each party’s age, financial resources, and ability to earn;
- Who is caring for the children;
- Each party’s future needs;
- Child support costs
- Each party’s financial and non-financial contributions to the relationship; and
- If spousal maintenance is needed
Spousal maintenance is the payment that the higher-earning spouse makes to financially support his/her lower-earning partner. This is the duty and obligation of a higher-earning spouse. However, it’s not very easy to get spousal maintenance since the court will also consider the following when granting spousal maintenance:
- The age and health of the lower-earning spouse;
- If the party receiving spousal maintenance doesn’t have financial resources;
- If the lower-earning party is mentally or physically incapacitated;
- The income potential of the person receiving spousal maintenance;
- Child support payments and how will it affect the higher-earning party’s ability to provide spousal maintenance; and
- Who the primary carer is in the relationship.
3. Be Informed About Parenting Matters
Parenting arrangements set out new plans for how each ex-spouse will care for their child during or after they attend the divorce hearing. Divorced/separated parents can either agree to make parenting plans on their own or have the court decide on the parenting arrangements.
Either way, the court will turn arrangements into legally enforceable court orders. Here are the primary considerations when making parenting plans:
- Schedule of changeovers
- The child’s holidays, summer vacations, and special occasions
- Travel and vacations
- When and how long will the child meet his/her friends and other relatives
- Parenting plan changes
- Communication with the parent with whom the child is not living with
- Allocation of parental responsibility
4. Parental Responsibility and the Child’s Best Interests
The allocation of parental responsibility is the most crucial part of parenting matters when parties attend the divorce hearing. A parent with parental responsibility gets to make major long-term decisions for his/her child. Some of these decisions include school and medical arrangements, name changes, religion, and living arrangements.
Courts will ensure that the child’s living arrangements are such that it will not be difficult for the other parent to spend time with his/her child. But, can parents share parental responsibility? Yes. From the start or end of a marriage, courts will always presume that there’s an equal shared parental responsibility between couples.
However, courts will award sole parental responsibility to one parent if deemed necessary. The allocation of parental responsibility to one parent will entirely depend if it’s in the child’s best interests. Section 60CC of the Family Law Act 1975 contains the two primary considerations for the child’s best interests which are:
- The child’s right to have a meaningful relationship with his/her parents, grandparents, relatives, and other significant people in his/her life.
- The child’s right to have protection from violence, abuse, and neglect
5. Seek Legal Advice From a Family Lawyer About Divorce Hearings
A court hearing requires careful preparations due to the many legal requirements, proceedings, and documents involved. That’s why it’s also wise for each party to have a family lawyer who can represent them in the court building.
JB Solicitors are experienced in litigation and aiding their clients to remain composed during legal proceedings. We offer mediation and arbitration services to parties who wish to reach an amicable agreement on parenting and financial matters.
Message our team of family lawyers today for more information about divorce proceedings and how to file a divorce order.