When a relationship breaks it can be devastating for both parties, and how to go about it can be a daunting task that you may not want to think about. The difference between a separation and a divorce depends on whether or not you are legally married. A divorce legally ends a marriage, concluding all legal ties related to that marriage and providing a clean break so that both parties can remarry should they wish to do so. A legal separation allows couples to live apart without legally ending the marriage, and can comprise of a formal agreement that outlines financial and child-related matters during that separation. A separation allows for the possibility of a reconciliation, and neither party can legally remarry. However a legal separation period can often be a stepping stone to a divorce.
All divorces in Australia are handled by the Family Court, and this means that the process is kept to a fairly standard procedure. A divorce can be an extremely stressful and emotional experience for many couples, therefore the process is designed to be as straightforward as possible, and not as daunting as it may first seem.
Are You Eligible To File For Divorce?
To apply for a divorce in the Family Court you must meet two requirements: that you have been separated from your spouse for 12 months, and that there has been an “irretrievable breakdown” of the marriage with no possibility of getting back together.
You and your ex-partner also need to satisfy residency requirements, and that means meeting at least one of the following requirements;
- You were born in Australia or have become an Australian citizen
- You usually live in Australia and consider it your permanent home
- You have lived in Australia for at least 12 months before you applied for the divorce
For a divorce application to be accepted by the Family Court there must be no possibility of you or your partner rekindling a romantic relationship. If you have been married for less than two years you will be required to go for mandatory counselling before the application is considered.
Even if you are still living in the same house as your ex, maybe because of children or financial matters, you can still apply for a divorce as long as you have been separated for at least 12 months. You may be required to provide evidence that you are still living under the same roof, but no longer as a couple, and are now living separate lives. Relevant factors can include whether you sleep together or engage in sexual activities, whether you share domestic duties and meals, whether you share money and bank accounts, and whether friends and family consider you to be separated.
Different Types Of Divorce Application
When you file for a divorce you need to decide whether you want to file a sole or joint application. There are different obligations for each so you need to consider this carefully before you begin the process.
A sole application means you will be the applicant and only you need to sign the application form. Your partner will then be the respondent and you will need to be prepared to serve the divorce application you have signed to your ex. Where the application is made together both parties will be the applicants and both need to sign.
Filing For A Divorce Procedure
Before you can commence proceedings for a divorce, the application for divorce must be prepared. Whether you decide to do this solely or jointly, you will still need a copy of your marriage certificate and proof of jurisdiction like a passport, Australian citizenship or a visa. If you have been married for less than 2 years you will need a counselling certificate, and an affidavit for filing online. It is always useful to engage the help of a lawyer at this stage to prepare your application properly and ensure you have all the necessary supporting documentation.
You will need to register for the Commonwealth Courts Portal so you are able to file all your paperwork online, however, same-sex couples cannot be filed online and will need to visit [email protected] or telephone the Family Law National Enquiry Line on 1300 352 000 for more information.
There is a standard fee for filing a divorce application of $1,100, however, certain individuals may be eligible for a reduced fee of $365 as long as they meet specific criteria or are facing financial hardship.
When all the relevant documents have been filed the Federal Circuit and Family Court of Australia will process the documents and set a hearing date. If you have applied as the sole applicant, you must serve the other party with the divorce papers at least 28 days before the hearing. You can do this by post if you are confident that your spouse will sign and return the papers, which includes the Acknowledgement Of Service (Divorce). If this paper is not returned you will need to arrange for the papers to be served by hand. You cannot do this yourself, you need to arrange a friend or family member (over 18 years of age) or a professional server to do this for you.
The Final Steps
All divorce hearings are held electronically so if you are required to attend you will be given dial-in information in order to do this. If all the requirements are met the court will grant the divorce by issuing a divorce order. The divorce does not become final until one month and one day after the order is made, unless otherwise stated by the court. A sealed copy of the order will be available on the Commonwealth Courts Portal once the divorce becomes final and you will then be able to download a copy.
If you do not wish a divorce to be granted you file the paperwork with the court and appear at the court hearing to explain why. As always, Dam Lawyers are here to help every step of the way, so don’t hesitate to contact us.
