Sole Application for Divorce
Spouses that have separated and are seeking file an Application for Divorce may do so together or solely. The process of joint Application is less onerous and forgoes the requirements of service.
Should you seek to file a sole Application, the following processes apply:
Service Process and Options
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:
1. Your spouse will need to execute an Acknowledgement of Service (Divorce) and return to us.
2. You will then need to execute an Affidavit of Service by Post (Divorce) and attach the Acknowledgement.
Alternatively, should you instruct us to serve your spouse by hand via a Professional Process Server, the following process applies:
1. Your spouse will need to execute an Acknowledgement of Service (Divorce) and provide it to the Process Server.
2. The Process Server will execute an Affidavit of Service by Hand (Divorce) and will attach 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 attach a photocopy of the executed Acknowledgement.
Filing your Application for Divorce
At the time of filing you 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 spousal 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 whom can independently provide evidence about this. Their Affidavit should state facts about what changes they have observed in the house post-separation, conversations with you about separation, excreta. The Court may insist and make a direction that such an Affidavit be filed before granting the Divorce Order.
As you are solely applying for Divorce and if 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;
- whether you ordinarily live in Australia and have done so for 12 months immediately before filing your Application for Divorce;
- 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.
- 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 Divorce Order can be obtained in due course.
Property Alteration Orders
A Divorce Order is made 1 month and 1 day after a Divorce is granted at a Divorce Hearing. From this date, you have 12 months to commence Court proceedings or to file Consent Orders in relation to Property Alteration Orders. For De Facto Relationships, you have 2 years to commence Court proceedings after the date of separation. After this time expires, you may only commence Court proceedings if you have “Leave” (permission) from the Court, which requires you to establish reason/s why you should be allowed to do so. “Leave” is at the Court’s discretion and therefore you cannot be certain that you will be granted permission.
It is important in your circumstances, that you commence arrangements to obtain a settlement of your Property Alteration matters in advance of filing an Application for Divorce, as it is not necessary to wait until after Divorce matters are either commenced or finalised, as these two matters run independently of each other. Should your Property matter not appear to be finalising close to the 12-month expiry period, we will provide you with fresh advice about commencing Court proceedings.
Whilst spouses remain separated, but not yet divorced, any receipt of income or assets or occurrence of liabilities or losses by either party, will be considered to form part of the parties’ total asset pool. Such events may or may not affect the parties’ final property settlement outcome.
In seeking to obtain a settlement, spouses may enter into a Binding Financial Agreement or Consent Orders, each option should be considered in light of your circumstances.
In engaging in the settlement process, spouses should make full and frank disclosure of all aspects of your circumstances throughout this process, especially in seeking to execute Consent Orders or Court Orders. Failing to fulfil this obligation may result in being found guilty of contempt of court, ordered to pay costs or the proceedings being stayed or dismissed.
Reaching Settlement – Options Available
To reach a settlement, parties usually enter into negotiations with the guidance of their Family Law Solicitor as well as participate in a Family Dispute Resolution Conference (Mediation) with a Family Dispute Resolution Practitioner (if appropriate). Commencing Court proceedings is the last resort and should only be commenced in circumstances where no other appropriate means of alternative dispute resolution is available.
Arbitration is another means of private alternative dispute resolution, which may only be evoked by the parties with their consent through a written contractual agreement (or by a Court Order in extant proceedings). Arbitration is conducted by a Family Law Arbitrator and can occur at any point in the matter. Whilst Arbitration is not a judicial process, procedural fairness or due process must still be afforded and demonstrated to have been so afforded.
At the completion of the Arbitration, the Arbitrator delivers an Arbitral Award. Either party can apply to the Court to register the Arbitral Award and must notify the other party of this. Registration is particularly important as it is a pre-condition of being able to enforce the Arbitral Award. A party, upon receiving notice that the Arbitral Award is to be registered, may within 28 days raise reasons why it should not be registered.
Some important aspects of Arbitration include, but are not limited to:
1. the parties being able to select the Arbitrator.
2. the process of Arbitration can occur quicker than a Final Court Hearing.
3. the parties (in consultation with the Arbitrator) have the flexibility to coordinate when or where Arbitration can occur.
4. the Arbitration process is less formal.
5. Arbitrations are private and confidential.
6. the parties cannot issue Subpoenas if there are no Court proceedings on foot (Subpoenas can only be issued in extant proceedings).
7. a registered Arbitral Award can only be reviewed by a Court on limited grounds such as questions of law, resulting in either affirming, reversing or varying the Arbitral Award, therefore rehearing of the issues is not available.
8. an Arbitral Award can only be set aside or varied by a Court on limited grounds such as:
(1) fraud or non-disclosure of a material matter;
(2) the Award or Agreement is void, voidable or unenforceable;
(3) change in circumstances which make it impracticable for the Award to be carried out; or
(4) there was bias, lack of procedural fairness in the way in which the Arbitration process, as agreed between the parties and the Arbitrator, was conducted.
(b) Court Proceedings
Should a matter not settle through alternative dispute resolution processes, such Mediation or a spouse does not consent to attend Arbitration, consideration should be given commencing Court proceedings in advance of the expiration period.
The Court, in determining Property Alteration Orders undertakes a 4-Step approach:
Firstly, determines the parties’ total asset pool, by accounting all the parties’ assets, liabilities and financial resources, held both solely or jointly. Each party must make full and frank disclosure of this to the Court. The usual course is to determine this asset pool on a global basis, rather than by an asset-by-asset approach. This step also takes into account any “add-backs” for any distributions already made, losses or wastage of assets and legal fees as well as the implications of Stamp Duty, Capital Gains Tax and any other applicable taxes.
Secondly, by assessing each party’s financial contribution and non-financial contribution made directly or indirectly, to the marriage or your Son, being the acquisition, conservation or improvement to any of the parties’ property. This also includes property that has ceased to be the parties’ property. Further, an assessment of contributions made to the welfare of the family, including contributions in the capacity of homemaker or parent. Contributions
Thirdly, by considering the effect of any proposed Order upon the future needs of either party, taking into consideration the earning capacity of each party, the effect of Child Support that a party has provided, is to provide or might be liable to provide in the future for your Son.
Fourthly, the Court must be satisfied whether, in all the circumstances, it is just and equitable to make the proposed Property Alteration Order.
Formalising Parenting Arrangements
Finalising Parenting arrangements can be achieved through engaging in negotiation and sending correspondence with proposals between the parties’ Solicitors and/or attending a Family Dispute Resolution Conference (Mediation) (FDR) with a Family Dispute Resolution Practitioner (which may be conducted via face-to-face, telephone or shuttle). These alternative dispute resolution processes (if appropriate), allow parties to resolve any remaining issue in dispute and to formula a parenting arrangement without commencing Court proceedings. Should the parties reach an agreement, then a Parenting Plan or Consent Orders may be entered into to formalise the proposed arrangement.
Parenting Plans are likened to a private contractual arrangement between the parents, providing flexibility to be changed and amended as the needs of the child or circumstances change. However, Parenting Plans are not enforceable by the Court, therefore should one parent not follow the Plan, the Court will not be able to enforce the other parent to comply. The Court may, however, take into account the existing Plan and the arrangements that were in place in making fresh Parenting Orders. By comparison, Consent Orders have the same effect as Orders made by the Court of its own motion and are therefore enforceable. Should Consent Orders not be complied with, a parent is able to commence Contravention proceedings against the other parent for non-compliance.
Should you not be able to reach an agreement with your spousal or you are being prevented from spending time the child, then it will be appropriate to commence Court proceedings, seeking Parenting Orders. We note that commencing Court proceedings should be reserved as the last approach. Further, before filing, the parties are required to attend Mediation, unless it is not appropriate to do so due to the matter being of an urgent nature or there has been family violence. This is because the parties are provided with a section 60I Certificate confirming their participation at Mediation and this must be annexed to the filed Court documents. If Mediation has not been attended because it was assessed as not appropriate, this will then be recorded on the s 60I Certificate.
The Court’s Approach
The Court’s approach in determining Parenting Orders for a child is to ensure that all aspects of a proposed arrangement will be in the ‘best interest of the child’, as this is the paramount consideration. The best interests of a child are for both parents to have “Equal and Shared Parental Responsibility” for making decisions in relation to the child’s long-term care, welfare and development in respect to major matters affecting the child, such as medical treatment, education and religion.
In making Parenting arrangements, the Court’s “Primary Consideration” is to ensure the child has a meaningful relationship with both parents as well as to protect the child from physical or psychological harm or being exposed to abuse, neglect or family violence. The Court places significance upon the later.
The Court will also take into account the following “Additional Considerations”:
1. the child’s views and any factor which the Court will consider in placing weight on those views;
2. the nature of the child’s relationship with each parent and other persons such as grandparents or relatives;
3. the extent to which each parent has taken or failed to take, the opportunity to participate in making major, long-term decisions, to spend time and communicate with the child;
4. the extent to which each parent has fulfilled or failed to fulfil, their obligation to maintain the child;
5. the likely effect of any changes in the child’s circumstances, such as being separated from either parent;
6. the practical difficultly and expense of the child spending time with and communicating with a parent. And whether that difficulty or expense will affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
7. the capacity of each parent or other person, to provide for the needs of the child, including emotion and intellectual needs;
8. the maturity, gender, lifestyle and background (lifestyle, cultural and traditions) of the parents and child;
9. if the child is Aboriginal or Torrens Strait Islander and the child’s right to experience this culture;
10. each parent’s attitude to the child and to the responsibilities of parenthood;
11. any family violence involving the child or member of the child’s family;
12. whether a Family Violence Order applies;
13. whether it would be preferable to make an Order that would be least likely to lead to the institution of further proceedings in relation to the child; and
14. any other fact or circumstance that the Court thinks is relevant.
Accordingly, the child should spend equal time with both parents and should communicate with the other parent, whom they are not currently spending time with. However, if this type of arrangement is not appropriate due to it not being in the best interests of the child or not reasonably practicable to continue to facilitate in future years, then consideration is given to the child spending “Substantial and Significant Time” with his parents. This means, that the child will generally live with one parent and spend frequent time with the other parent on a scheduled basis for sufficient periods of time on each occasion to ensure the child develops a relationship with the other parent. Additional time is scheduled for days of significance and school holidays. Arrangements will differ depending on the child’s age, with future arrangements to trigger when the child reaches certain developmental or age milestones.
Should Court proceedings be commenced, parties may anticipate the appointment of an Independent Children’s Lawyer (ICL) in certain circumstances. The costs of the ICL are usually equally funded by the parties.
The Court will also direct the parties to attend a Child Dispute Conference (CDC) with a Family Consultant (psychologist or social workers), whom will usually separately interview each party to discuss the issues in dispute, risk factors, the child and co-parenting relationship. The Family Consultant will then prepare a CDC Memorandum for the Court about these factors discussed, any agreement reached by the parties as well as future directions and recommendations.
Before a Final Hearing is set, the Court may also direct that a Family Report be prepared through conducting a series of interviews with the parties, observing your interactions with the child as well as consulting doctors, teachers and other professionals and Subpoena material produced (where available).