DIVORCE & SEPARATION
Before you can file a divorce application to dissolve your marriage, you must demonstrate that you have been separated for at least 12 months. The reason for this is to prove to the Court that there is no prospect of reconciliation and the marriage has “irretrievably broken down”.
In Australia, the Courts do not take into account who caused the separation or breakdown in the relationship. The (Cth) established the principle of “no-fault divorce” in Australia. This means that the Court will not take into account cheating, affairs, religion, different opinions, etc, when considering whether or not to dissolve a marriage. In other words, the Court does not consider the marriage ended and the only ground for divorce is that the marriage broke down and there is no reasonable likelihood that the parties will get back together.
Under Part VI of the , the Federal Circuit Court of Australia has the jurisdiction (or power) to deal with dissolution of marriage (i.e. divorce). The granting of a divorce does not determine issues of financial support, property distribution or arrangements for children.
It simply recognises that the marriage has ended. Property settlement, parenting orders, and spousal maintenance applications are separate and you should simultaneously seek advice about these applications when seeking a divorce. It should be kept in mind that property settlement applications must be filed within 12 months from the date the divorce takes effect. Parenting orders can be made any time before or after divorce.
Filing for Divorce:
With every divorce application, a marriage certificate must be filed with the Court. If no party is an Australian Citizen, further evidence of their proof of residence must be filed with the application.
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Whether both parties or just one party wants a divorce, the application can still be filed and determined by the Court. There are two types of divorce applications that can be made with the Federal Circuit Court of Australia:
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Joint Divorce Application; or
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Sole Divorce Application.
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A joint divorce application can be made where both husband and wife are seeking a divorce. Only one document needs to be completed by the parties and filed with the Court. If there are no children under the age of 18 years, the Court will likely determine the application in Chambers and the parties are not required to attend Court. If there are children under the age of 18 years, the Court may require the parties to attend Court to confirm that there are appropriate arrangements in place for the care, welfare and development of the Children. This is required by section 55A of the Family Law Act 1975.
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A sole divorce application can be made when one party is seeking the divorce, or if that party cannot contact the other party. For example, if your wife or husband left Australia and resided somewhere unknown to you and you cannot get in contact with him or her, then you might consider filing a sole divorce application. This application still requires you to file a copy of your marriage certificate and confirm the details of the other party.
Once the sole divorce application is filed, you must then arrange for the filed application to be served in person or via post at least 28 days prior to the Court hearing (or at least 42 days before the Court hearing if your spouse is outside of Australia).
Providing evidence to the Court that the filed application has been served on your spouse is essential and you should also provide evidence that you have put your spouse on notice of the application. If you cannot serve the divorce application via post or in person, then you will need to apply to the Court for substituted service orders, or orders dispensing with service. Provided the Court is satisfied you have served your application on your spouse and otherwise put them on notice, and there are no children under the age of 18 years, the Court can make the divorce order in chambers.
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What happens after I file my divorce application?
When you file your divorce application, you will need to pay a filing fee in order for the application to be accepted. Whether you have filed a joint divorce application or sole divorce application, the Court will confirm a hearing date upon accepting your documents. You should be prepared to attend Court on that date. Closer to the hearing date of your divorce application, the Court will confirm whether you need to physically attend Court or if your application will be determined in Chambers by a Registrar of the Federal Circuit Court. If the application is successful, the divorce order will be granted.
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What happens after the divorce order is granted?
Once your divorce order is granted, the Court makes a decree nisi. A decree nisi is an order basically giving you and your spouse an opportunity to reconcile before the divorce takes effect and the marriage is dissolved. After one month and one day from the date the divorce order is granted, the decree nisi becomes a decree absolute and the divorce officially takes effect. In other words, the marriage is dissolved and you and your spouse are no longer recognised as married. It is important to consider your financial circumstances at this point and seek legal advice about property settlement and your will.