Divorce is the legal end of a marriage between two spouses. Deciding to divorce is one of the most difficult decisions that a person has to make, but the application process does not have to be. At Legal Point Lawyers, we deal with multiple divorce applications every month so you can be assured that we will keep the matter simple so that you can obtain closure as soon as possible.
Divorce Applications in general
Under Australian family law, the Courts uphold the principle of no-fault divorce, which means that the reason for the breakdown in a marriage is not considered. When a Divorce Order is granted, it does not mean that issues concerning parenting arrangements and property settlement are resolved. These two issues should be addressed prior to a divorce application.
Spouses that have separated and are seeking to file an Application for Divorce may do so jointly or solely. The process of a joint Application is less onerous and forgoes the requirements of service.
Sole application for divorce
Once your Application for Divorce, Affidavit and supporting documents (including copies of your Marriage Certificate and your Passport) have been filed, these documents will need to be personally served to your spouse 28 days before the Divorce Hearing date. Your spouse may be personally served, either by post or by hand (a Professional Process Server is normally engaged to execute service, as you are not permitted to undertake service upon your spouse).
Service by Post is only advisable if you are confident that your spouse will execute and return the Acknowledgement. Should your spouse not execute and return this Acknowledgement, the Court will not grant the Divorce Order, as it will not be satisfied that your spouse received the documents.
Should you instruct us to serve your spouse by post, the following process applies:
- Your spouse will need to execute an Acknowledgement of Service (Divorce) and return to us.
- You will then need to execute an Affidavit of Service by Post (Divorce) and annex the Acknowledgement.
Alternatively, should you instruct us to serve your spouse by hand via a Professional Process Server, the following process applies:
- Your spouse will need to execute an Acknowledgement of Service (Divorce) and provide it to the Process Server.
- The Process Server will execute an Affidavit of Service by Hand (Divorce) and annex the original Acknowledgement.
If your spouse does not execute the Acknowledgement, the Process Server will still complete the Affidavit in accordance with the circumstances of service. You will then need to execute an Affidavit Proving Signature and annex a photocopy of the executed Acknowledgement.
Filing your Application for Divorce
At the time of filing your Application for Divorce, you will be able to select a listing date for the Divorce Hearing from a range of available dates. Hearings are normally listed in 2 to 3 months’ time from the date of filing.
Separation under one roof
Should you have continued to live with your spouse under one roof post-separation, then you should also file a further supporting Affidavit from a third-party witness, such as a friend, neighbour or family member, who is familiar with your marriage and separation arrangements “under one roof”, and who can independently provide evidence about this. Their Affidavit should state facts about the nature of the parties’ relationship whilst the relationship was intact, and what changes they have observed in the house post-separation. This should alsoinclude any conversations with you about separation. The Court may make a direction that such an Affidavit be filed before granting the Divorce Order.
If you are solely applying for Divorce Orders and there is a child of the relationship under the age of 18, you must attend in-person or by a pre-arranged teleconference (subject to facilities being available).
Prior to granting a Divorce Order, the Court will seek to be satisfied, that in all the circumstances, proper arrangements for the care, welfare and development of your child have been considered and made by the parties. For this purpose, the arrangements need to be satisfactory in all the circumstances.
The Court will also need to be satisfied:
- that it had jurisdiction to hear the matter, consider factors such as whether you regard Australia as your home and intend to live indefinitely in Australia; or
- whether you ordinarily live in Australia and have done so for 12 months immediately before filing your Application for Divorce; and
- that the parties had been separated for more than 12 months and that the marriage had broken down irretrievably; and
- that supporting documents such as copies of Certificate of Marriage and citizenship documents have been filed; and
- that supporting Affidavits have been filed (as required).
After the Court grants the Divorce Order, the Divorce Order will take effect in 1 month and 1 day. A copy of the sealed Divorce Order can be obtained in due course.
If you want to apply for Divorce, feel free to contact our office for a face-to-face consultation. Alternatively, you can click on Application for Divorce to access our online service, where you can apply for divorce by yourself at a more affordable price with limited guidance.