How do I apply for Divorce?

Choosing to end a marriage is an incredibly difficult decision and one that can cause a large amount of emotional strain. This is especially true if you have children or joint assets. However, in this post, we will discuss the process of applying for divorce order only, which is different to applying to the court for a property settlement or applying to the court for a parenting matter.

Who can apply for a Divorce?

When you apply for a divorce, the court does not determine who was at ‘fault’ for the breakdown of the marriage and/or whether both parties want/wanted the separation or divorce. In order to apply for divorce, you must meet several criteria:

  • You (or the other party) must either:
    • Have been born in Australia or become an Australian citizen by descent; or
    • Be an Australian citizen by grant of an Australian citizenship or
    • Be lawfully present in Australia and plan to continue living in Australia. You must have lived in Australia for at least the last 12 months and evidence will be required to prove this.
  • You must intend to end the marriage and believe that there is no reasonable likelihood that you will get back together;
  • You must have been separated for at least 12 months and one day (or longer) before you make the Application.

If you have been living together during this time, known as ‘separation under the one roof’, you will need to file an affidavit evidencing that there has been a change in the marriage. During the separation, you can get back together for three months without the 12-month separation period restarting.

  • You must have a marriage certificate or an affidavit setting out the details of the marriage and reasons why you are unable to provide a certificate. If your marriage certificate is from another country, it may need to be translated.

If you meet all of these criteria, then you are able to apply for a divorce. If you’re unsure about whether you meet the criteria, then you should seek legal guidance. A lawyer can help you understand your rights and responsibilities, as well as explaining how the law applies to your case.

How do I apply for Divorce?

Under Part VI of the Family Law Act, the Federal Circuit Court of Australia has the power or jurisdiction to deal with divorce, also known as the ‘dissolution of marriage’.

When applying to the court, you can either prepare and file your own application or you can ask your lawyer to do it for you. The process is relatively straightforward provided certain facts contained within the application are not contested by the other party, but using an experienced family lawyer can help you to understand the timelines and procedural nature of the application as well as to help you deal with any contested facts/issues and represent you at court should an appearance be required (e.g. if you are the sole applicant in a divorce application where there are children under the age of 18).

Providing that you meet the relevant criteria for divorce, you can either file a sole or a joint application.

Sole Application

If you file a sole application, you will be known as the applicant and the other party will be known as the respondent. The application will only require your signature, but the application must be served on the respondent. If there are children under the age of 18 involved, then your (and/or your solicitor’s) attendance at court is required. If there are no children under the age of18, you will not have to attend the divorce hearing.

Joint Application

Here, both parties are known as joint applicants. This means that both parties must sign the application.  However, whether you have children under the age of 18 or not, your  attendance at court is not required.

Additional Documentation

You should also note that, if you have been married for under two years, you will need to file a counselling certificate with your application.

In addition, if one party now uses a different name to their married or maiden name, then that party will also need to file an affidavit to explain the difference in names.

Filing the Application

An application for divorce can be filed via the Commonwealth Courts Portal or by filling out the appropriate paperwork and filing it at the Court Registry.

When the application is filed, a $900 fee is payable. This may be reduced to $300 if you can prove financial hardship or if you are in receipt of a health rate card. For a joint application, both parties must prove that they are experiencing financial hardship or both must be in receipt of a health rate card.

Once your divorce is finalised, a divorce order will be available to download on the Commonwealth Courts Portal.

Time Limits

One of the most critical things to remember after obtaining a divorce is that applications for property settlement and/or spouse maintenance are required to be filed within 12 months of the date the Divorce Order became final.

If you fail to bring such application, then you lose your right to bring an application and it is necessary for you to seek leave (permission) from the Court to proceed with a property settlement and/or spouse maintenance application out of time.  This is an expensive procedure and there is no guarantee that the Court will grant the leave.

To conclude, even if the divorce is amicable, going through a divorce can be a highly stressful process. As a result, before you begin the process, it is highly advisable that you contact a legal expert to discuss your case. If you would like to book an appointment with one of our experienced team members, please contact us on 07 3837 5500 or at enquiries@damiengreer.com.au or get started online.

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