The Divorce Check List
The dissolution of a marriage is a common occurrence following separation. A Divorce order is one of the very few final orders that is not reviewable. It is for these reasons that married spouses applying for a divorce must ensure that they are eligible for the application. The criteria to apply for a Divorce is detailed below.
HAVE YOU BEEN SEPARATED FOR 12 MONTHS
Under section 48 of the Family Law Act 1975 spouses must be separated for a minimum period of 12 months. Separation includes the point where your relationship ends. It does not need to reflect a change of residence but rather the cessation of a relationship being an intimate relationship and financial dependency upon the former spouse. It is not uncommon for former spouses to remain in the same household whilst being separated. Separated under one roof is recognised as a form of separation, however difficulty can arise if a common date of separation is not reached. It is important therefore to ensure that you have evidence of your separate bank accounts and separate living circumstances even if living in the same household. If you have been separated for 12 months and within that 12 month period you have briefly reconciled on one occasion for no longer than 3 months then under section 50 of the Family Law Act 1975 it is possible to still file for a Divorce within the 12 month continuous period. If it is the case that you reconciled for longer than 3 months within the 12 month period and then wished to proceed to a divorce following a further separation then the court would consider the final date of separation to be the date of the most recent separation.
HAVE YOU BEEN MARRIED FOR LESS THAN 2 YEARS
If you have been married for less than 2 years there is an obligation for spouses to undertake family counselling and explore the possibility of any reconciliation. There are some exemptions to this obligation where married couples have been separated for at least a year with no reconciliation during the 2 year marriage, or if the totality of the 2 year marriage has been spent separated. Other exemptions may also include significant risk of family violence.
ARE THERE ANY CHILDREN UNDER THE AGE OF 18 YEARS UNDER THE MARRIAGE
If there are no children of the marriage or your children are over the age of 18 years then this step is not applicable and it is likely that your divorce hearing will proceed with the requirement of personal/virtual attendance. If there are children of the marriage and the children are under the age of 18 years you will need to set out what parenting arrangements are in place for yourself and the other parent. It is also a requirement that you provide information as to education level of the child and also any medical or health issues the child may suffer from. The court needs to be satisfied that upon the divorce there is ongoing parenting arrangements in place for children to continue a relationship with the other parent. If no arrangements are in place it is generally advised that the parties look to attending a mediation to discuss parenting arrangements. Depending on the circumstances a Registrar may or may not be satisfised to grant the divorce if parenting arrangements have not been explored.
ARE THERE ANY MATRIMONIAL PROPERTY
If there is property acquired during the relationship or throughout the marriage including property that spouses may have come into the marriage with it is important that property settlements have taken place. Agreements can be reached through mediation, by consent or by applying to the court. It is important to note that if you obtain a Divorce and intend to commence property proceedings you have 12 months from the date of the divorce order to commence property proceedings. After the 12 month window you will not be able to commence property proceedings without special leave from the court. Leave is not granted freely and only in special circumstances can leave be sought.
MARRIAGE FAMILIES AND SEPARATION BROCHURE
This is a compulsory court brochure that you are obligated to read which is available on the Family Court website It provides information on the referral services for spouses going through separation including family counselling and also referrals for family violence. It also introduces pre action court procedures that alternate discuss dispute resolution options.
SERVICE – WHAT IS THIS
Service forms part of procedural fairness. There is an obligation that the spouse applying for divorce has made the respondent spouse aware of the divorce proceedings. Service takes form as personal service and conducted by process servers. A process server will be required to personally deliver the Divorce application, marriage, families and separation brochure and affidavit of e-filing. Following this the process server will generate an acknowledgement of service for the respondent spouse to sign acknowledging receipt of the application. The process server will then complete an affidavit of service to affirm that service has taken place. The court requires that service take place no less than 28 days prior to the divorce hearing date.
CITIZENSHIP – DO I HAVE TO BE AN AUSTRALIA CITIZEN TO GET DIVORCED IN AUSTRALIA
Australian citizenship is key to allowing the court to exercise jurisdiction in granting a divorce. You will need to provide to the court proof of citizenship by way of your citizenship certificate or Australian birth certificate. Permanent Residents are also eligible to obtain a divorce, the Court requires a former spouse to be domiciled in Australia and have the intention to remain living in Australia.
MARRIAGE CERTIFICATE
Proof of nuptials even if the marriage took place overseas is fundamental. The Courts must recognise the marriage prior to dissolving the marriage. The court requires that a copy of the marriage certificate be filed with the court to satisfy this criteria. If it is the case that the marriage was held outside of Australia and the certificate is not written in the English language it is required that the marriage certificate be formally translated by an accredited translator and both the original non-English marriage certificate and translated marriage certificate be filed with the court.
DIVORCE HEARING
Upon lodgement of your Divorce application you will be provided with the court listing date for the Divorce hearing. Generally in marriages where there are no children under the age of 18 years or shared property between the spouses it is not expected for parties to appear before the court. In these circumstances the Court Registrar will review the application and upon no requisitions will grant the Divorce order in chambers. In circumstances where spouses have children under the age of 18 years appearance from the applicant of Divorce proceedings is required. The court must be satisfied that there are provisions in place for parenting and property matters prior to dissolving the marriage.
WHEN IS MY DIVORCE FINAL
Once the order is made it’s the Divorce Certificate becomes available from one month and one day from the date of the order. Due to the shift in the court systems to move towards a digital court file Divorce Certificates are accessible only through the Court Commonwealth Portal Comcourts. It is expected and required that parties register and engage with this portal for all family law matters.
FEES
In addition to the set rates that are paid to Forshaw Lawyers to prepare an application for divorce, the court also requires a filing fee to be paid upon lodgement of the Divorce application. Some exemptions to the court filing fee apply in which case a reduced filing fee may be applicable to spouses. Service fees also form part of the costs Legal aid grants can be obtained for spouses in circumstances of extreme risk of significant family violence which can cover the costs of a Divorce application.
