An insight into divorce in family law proceedings
The end of a marriage is a difficult and emotional time for those involved. Often the lengths of marriages are years and there are children, assets and liabilities as a result.
To overcome the common misconception that there is a link between property, parenting and divorce matters, outlined below are what is required to apply for divorce and what the court must be satisfied with.
Applying for divorce
Divorce can be applied for in 2 ways:
- by one spouse; or
Before applying for divorce, you must satisfy each of the following requirements:
1. Either you or your spouse:
a) Are an Australian citizen; or
b) Regard Australia as your home within which you intend on indefinitely residing; or
c) Live in Australia and have done so for the 12 months before filing for divorce.
2. You have been married for at least 2 years;
3. You have been separated for at least 1 year (this includes separated and living under the same roof); and
4. The marriage has broken down and there is no reasonable likelihood that you will reconcile.
5. There are suitable arrangements in place for any children of the marriage under 18.
The court has a fixed filing fee for divorce applications.
Unless you are eligible for a fee reduction or suffer financial hardship, the application will not be processed until filing fee is paid.
Service is the process of providing filed documents to the other party in accordance with the court rules.
Joint applications do not need to be served.
For an application filed by one spouse, the filed application must be served on the other party or their lawyer if their lawyer has instructions to accept the divorce application.
An applicant cannot serve the other party. Another person over 18 must serve them by post or hand.
The court must be satisfied that the other party has been served before a divorce can be granted.
Importantly, time limits for service apply depending on if the other party is in Australia or overseas.
If there is difficulty in service, you can apply to the court that you do not have to serve the other party (service be dispensed with) or that another person be served instead (substituted service).
Change of name
If the name of a party has been changed since marriage the court will require an affidavit explaining the change.
Responding to a divorce
If you do not want the divorce application granted you can only oppose the application through a Response if:
- you do not agree there has been 12 months separation; or
- you dispute that the court has jurisdiction.
You should attend court if you file a Response opposing the divorce.
If you want the divorce to be granted but disagree with facts set out in the application, you can file a Response setting out the facts you do not agree with. Examples of disputed facts are dates of birth and spelling of names.
You should not need to attend court if your Response corrects factual errors.
A Response must be filed within certain time limits; otherwise it may not be considered by the court.
Once a divorce application is filed the court will provide a hearing date.
Court appearance is required if:
- only one party has applied; and
- there is a child of the marriage under 18.
Other circumstances where a party should attend court include:
- service difficulties
- you wish to provide additional information
- a Response has been filed
If the court requires further information then another court date will be provided. The court will inform the parties whether attendance at the next date is required.
If the court grants a divorce then it will come into effect 1 month and 1 day after the date of the order. You can only remarry after this date.
Withdrawing an application
If you no longer wish to proceed with a divorce once it has been filed, a Notice of Discontinuance can be filed with the court.
You will need to attend the hearing date unless the court notifies you before that the matter has been discontinued.
- In Australia, the principle of no fault divorce applies which means that the court will not consider why the marriage has ended.
- Applications for divorce relate only to the marriage. The divorce hearing will not deal with parenting or property matters. If there are parenting and/or property issues in dispute, a separate application will need to be made to the court.
- There are time limits to commence property proceedings once a divorce order is made.
A divorce application can be refused or delayed if the rules and legal requirements are not complied with.
At Opal Legal, we can provide advice on the divorce process including your eligibility for divorce and your rights and obligations.
We are usually able to quote you a fixed fee for the entire divorce process.