A common misconception is that a Divorce involves all aspects of family law that may arise from a separation including Child Support, Parenting arrangement and the division of matrimonial property. This is not correct. A Divorce simply dissolves or otherwise ends a marriage, but how do you apply for a Divorce?
Step 1- Proving your Marriage
Firstly, you need to file an Application for Divorce in Division 2 of the Federal Circuit and Family Court of Australia. In considering that application, the Court will first need to be satisfied that there is a marriage. This can easily be proven by filing a certified copy of your marriage certificate. Some common problems that can arise are:
- You were married overseas, and your marriage certificate is not in English. The solution is to file a translated certificate with an Affidavit.
- There is no marriage certificate. You will need to file an affidavit outlining the details of the marriage ceremony.
Step 2- Proving jurisdiction
At the time of filing your application, you must be an Australian Citizen, or domiciled in Australia or ordinarily residing in Australia for 12 months prior to filing.
Step 3- Relationship requirements
To succeed in an Application for Divorce the relationship must have broken down irretrievably and you must have been separated for more than 12 months (i.e. 12 months and a day).
No formal document needs to be signed to prove separation. Separation is simply one person having the intention to separate, acting upon that intention by changing the relationship (e.g. sleeping in a different room of the house), and communicating that intention to the other person whether directly or indirectly.
A common issue that arises is what to do when you have not been physically separated for more than 12 months but have been separated under one roof for more than 12 months. In such circumstances, you will need to file an affidavit from yourself and preferably another witness outlining the circumstances around separation.
Step 4- Service requirements
Once you have completed the above and filed your Application for Divorce with the Court you will be given a Divorce Hearing date. Prior to that date, you will need to service the application on your ex-spouse. If you have made a joint application, you do not need to prove the service of the Application. If it is a sole application you will need to personally serve the documents. We can assist by hiring on your behalf a professional process server who will serve the documents and draft an Affidavit of Service for filing to prove service. You cannot personally serve the Application yourself.
If you are unable to locate your ex-spouse or they are otherwise avoiding service, you can file a further Application with the Court to allow you to serve the documents another way (such as posting them to their parent’s home) or dispensing with service altogether. Such an Application needs to be accompanied by an affidavit outlining your attempts to serve the documents.
Step 5- Are there proper arrangements for the children
The legislation provides that the Court cannot make the Divorce order if there are children under 18 unless either:
- Proper arrangements in all the circumstances have been made for the care, welfare and development of those children; or
- there are circumstances by reason of which the divorce order should take effect even though the court is not satisfied that such arrangements have been made.
If your application is not a joint application and there are children, you will need to attend Court to explain that there are proper arrangements for the children. This is not an in-depth examination of the parenting arrangements. It is sufficient that the arrangements in place about shelter, food, schooling, and health are the best that can be achieved at this stage.
Divorce applications are routinely requisitioned/sent back or otherwise adjourned due to such common issues as outlined above. Legal advice and representation can avoid these issues. If you are contemplating divorce or require assistance with any family law matter, please contact our office to speak with one of our family law solicitors.
