This post will aim to address the most common concerns of anyone considering, or in the process of applying for a divorce. The breakdown of a marriage is a tough time for anyone, and so the purpose of this guide is to address the frequently asked questions pertaining to just exactly how to apply for a divorce.
The Two Ways To Apply For A Divorce
Joint Application – An Application For Divorce That Can Be Filed Together By Both Partners
- Beneficial where there are children under 18 years of age.
- No requirement to attend court
Single Application – Where One Party Decides To File An Application For A Divorce Without The Involvement Of The Other Spouse
- Must be personally served on the other party.
- Where there are children under 18 years of age, the spouse filing the application is required to attend a divorce hearing.
Can I Apply For A Divorce? – Eligibility
According To The Family Law Act (1975) The Court Must Be Satisfied That:
- You and your partner have lived apart and separately for a minimum of 12 months. (You may still however live in the same home and be separated for purposes of satisfying this requirement).
- There is no reasonable likelihood of resuming married life.
- If there are children under the age of 18 involved, proper arrangements must be made for them before the court may grant a divorce.
What You Must Include In A Divorce Application
The divorce applicant must provide details regarding the current residence(s) of both parties. If applicable, the applicant must also outline the plans in place for children under the age of 18, and further any agreements or court orders in place at the present time. These documents should be attached to the application in the typical matter.
A copy of the marriage certificate will also need to be attached to the application. In the event the filing party was born overseas, documentation such as a citizenship certificate or passport to verify their Australian citizenship status is also required to be included with the application.
If one spouse is filing for divorce, they will be required to also file a supporting affidavit, together with an affidavit made by a supporting witness which adequately addresses these circumstances.
The Costs Of Divorce
There is a filing fee for divorce applications. For a full list of payable fees, and which fees may be applicable to your particular circumstances please see here.
In some instances, you may be eligible for a reduced fee. Such circumstances include:
- When experiencing financial hardship.
- You hold certain government concession cards.
Note: Both spouses must be eligible for the same reduction to obtain the reduced fee for a joint application.
Further information about fee reductions, exemptions, deferrals and refunds can be found here.
Can I Still Apply For A Divorce If We Have Been Living Together Within The Last 12 Months?
Yes you can – In the situation where you have continued living together under the same household when you are separated, and this period is within 12 months prior to the divorce application filing date, each spouse must file an affidavit supporting the facts that:
- There has been a change in circumstances.
- The marriage has broken down to an irretrievable point.
Where one spouse has applied for a divorce, they are required to file an affidavit in support of this, together with an affidavit made by a witness who can sufficiently support the circumstances.
What Is An Affidavit?
A written statement prepared by a party or witness for the purpose of presenting evidence to the court. You will need to swear to the truthfulness of an affidavit, and have it verified by an authorised person such as a Justice of the Peace, or lawyer.
What Do I Need To Prove In An Affidavit?
There has been a change in the marriage eventuating in separation. This can be achieved by explaining:
- Any division of assets, such as separate bank accounts or division of property of any kind.
- A decline in family outings and/or joint activities.
- If you are sleeping in separate beds or rooms.
- Any reduction in performing routine tasks, or household responsibilities for one another.
- Any other matters that demonstrate the marriage has broken down.
The Affidavit Should Provide Descriptions Of The Following
- If there are children from the marriage under the age of 18, and any living arrangements you have made for them.
- Any Government departments you have advised of your separation, such as the Department of Human Services (Child support) or the Centrelink (Government benefits) – Attach copies of any correspondence.
- The reason(s) you have continued to reside in the same home, and any intentions (if any) of changing the living situation.
Situations When You Need To Go To Court For A Divorce Hearing
First
- You applied for divorce on your own.
AND
- There is a child of marriage under the age of 18 at the time of the application. This includes any children living with you and your spouse that you treated like members of the family, such as a child from a prior relationship or a foster child.
Second
If you are applying for an order for substituted service. This means you are not able to serve your spouse in the normal way, but can in another way
Third
If you are applying for an order for dispensation of service. Dispensation of service means you are incapable of serving your spouse entirely.
Fourth
Where you have filed an affidavit to explain situations where:
- You have been married or less than 2 years.
- You are separated but continuing to live to under the same roof.
If you do not attend court and more information is needed from you. You will be given another court date which you must attend.
The Timeframe For Responding To A Divorce
A ‘Response to Divorce’ must be filed:
- Within 28 days of the application being served upon you in Australia
- Within 42 days of the application being served upon you outside of Australia
You can electronically file (eFile) a Response to Divorce
OR
File it at a family law registry.
See here for more information.
At What Point Am I Considered Divorced?
While lodging the documents online, divorce applicants are required to decide on a date for their divorce hearing, which will take place before a Registrar. If the Registrar approves the divorce, it will come into effect precisely one month and one day following the court listing according to section 55 of the Family Law Act (1975).
Importance Of Seeking Legal Advice
The breakdown of a marriage leading to a divorce is a stressful experience in anyone’s life, and the technicalities involved with learning how to apply for a divorce should be the last thing on one’s mind during such an awful time. JB Solicitors takes the guess work out of the correct procedures to follow when filing an application for a divorce. With JB Solicitors, you can trust that your matter is in the hands of experts.
Call JB Solicitors on 1300 287 911 to help put the worry out of the process of applying for a divorce.
More Questions About Family Law?
If you have any more questions about separation or divorce read some of our other articles:
How are Assets Divided in a Divorce in Australia
Are You Separated But Living In The Same House? Here’s How To Prove It
