Divorce – Your Most Common Questions Answered

Divorce Lawyers

Divorce Questions

We are always receiving enquiries about divorce – the process, the timelines, how much it costs, what will happen with property and with children…  

Divorce and other family law matters, including arrangements about parenting and negotiating a property settlement, are interrelated matters on the one hand, but still separate matters in the eyes of the law.

Divorce – Definition

‘Divorce’ is the process by which married couples ‘end’ their marriage.  Note, this process is (of course) equally applicable to same-sex marriages.  

Getting a divorce, therefore, does not mean your parenting arrangements are sorted, nor your property settlement finalised.

By becoming divorced, what you have achieved is quite confined – you have ended your marriage and are free, if you so choose, to marry again.

In Australia, the rules around marriage and divorce are made by the Federal government, pursuant to the Constitution – section 51 (xxi) for marriage and section 51 (xxii) for divorce and matrimonial causes and parental rights, custody and guardianship of children.

Section 51 of the Constitution is accessible here:  http://classic.austlii.edu.au/au/legis/cth/consol_act/coaca430/s51.html

Divorce – the Basics

To be eligible for divorce in Australia, the applicant or the respondent must:

  • Be born in Australia or be a citizen by descent
  • Be a citizen
  • Be lawfully present in Australia and living in Australia for at least the last 12 months, intending to continue to live here (passport proof of arrival required and current visa)

In terms of the relationship:

  • The parties must have been separated for at least 1 year and 1 day (sometimes you can be ‘separated’ while still living in the same home – this can sometimes be a complicated question to determine)
  • The marriage must have broken down with no prospect of reconciliation or getting back together
  • The original marriage certificate, even if married overseas (formal translation required if in another language), must be provided.

Potential issues:

  • The parties have been married less than 2 years
  • Separation time has not been long enough to apply for divorce
  • One of the parties’ locations is not known (problems with service)
  • The parties were married overseas and the location of the formal marriage certificate is unknown

If any of the above issues may apply to you, please do not hesitate to contact our office for further advice.

Divorce – the Process

The process around divorce can be cumbersome and confusing.  

You must make an application to the Federal Circuit Court of Australia if you wish to end your marriage and divorce.  Upon a successful application being filed, the Court will allocate a date for the divorce hearing before a Registrar of the Court.

The party who is applying for the divorce is known as the applicant.

The other spouse party is known as the respondent.

The current fee for filing a divorce application is $930.00 (full fee).  Applicants who are concession card holders (for example, a Health Care Card) or can demonstrate financial hardship (e.g. little bank savings, no significant assets, low paying employment, etc.), may be entitled to a reduced application fee of $310.00.  

Joint applications may be made to the Court where the parties have agreed to jointly complete the application.  Joint applications can be much quicker to finalise, as well as cost-saving.  This is because an applicant who files for divorce with the Court must prove to the Court that the other party to the marriage has been served with a copy of the application.  The applicant cannot serve the respondent with the divorce documents.

Process Servers

The usual process for service is to employ a process server, who is an independent professional person who, for a fee (usually $100 – $150) personally meets the respondent and ‘serves’ (gives) the documents to them.  As part of this work, the process server completes an ‘affidavit of service’ which is another court document that is filed with the court and which acts as proof to the court, that the other party knows about the application being filed, and has all the relevant information about the application.

Service by Post

Alternatively, divorce applications can be served by post.  However, for the court to accept this type of service, the respondent must return to the applicant the acknowledgement of service document, which is a sworn document (sworn documents, or affidavits, are solemnly sworn or affirmed documents for which a person must promise to tell the truth – any failure to tell the truth on such a sworn document may be punishable as perjury with penalties including imprisonment).  

After receiving the acknowledgement of service document, the applicant must file an affidavit of service, stating that they recognise the signature on the acknowledgement document.

Service by post can be problematic if the relationship between the parties is strained, and if it is not known whether the respondent will be prepared to complete the acknowledgement document and return it.  Delays are often experienced in this way.

Importantly, applicants have limited time in which to serve the divorce application after it is filed.  The Respondent must be served at least 28 days before the scheduled divorce hearing.

Joint Applications – benefits

With joint applications, there is no separate and additional requirement for an applicant to file an affidavit of service evidencing that the divorce application has been ‘served’ as there is no ‘other party’ where both parties are the applicants.   

The Divorce Application Document

A divorce application requires full details for each party including personal information (name, age, contact details, employment, citizenship), details about the relationship (including the first date the parties cohabitated, the date of marriage, and the date of separation) and information regarding any periods of reconciliation that may have occurred during periods of separation.  

Parties must list details for any children under the age of 18.

Other court cases (parenting applications, property settlement applications, intervention orders, parenting plans, child welfare issues, child support matters) must also be declared.

Filing Documents

A Divorce application is made electronically through the Commonwealth Courts ‘Portal’.

Prompt Legal Services are very experienced in divorce applications and regularly assist clients in this process, ensuring accurate and efficient applications and a minimum of fuss.

Please do not hesitate to contact Prompt Legal Services for a quote, on 8317 0848, or email familylaw@promptlegalservices.com.au

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