Divorce Application

If you are thinking of separating from your spouse, it may be time to check when you become eligible to apply for divorce.

Eligibility

Either you or your spouse must regard Australia as your home and intend to live in Australia indefinitely or be an Australian citizen.

There is a 12-month separation period, during which the parties must have lived separately and apart. If there has been a reconciliation for a period totalling more than three months, the 12-month period will need to be counted.

Application for Divorce

The divorce process begins with the filing of a divorce application with the Federal Circuit and Family Court of Australia. You can apply jointly with your spouse or individually.

By applying individually does not mean that your application for divorce is more likely to be dismissed. It only means that there are more steps that you need to follow and perhaps more hearings that you need to attend to.

Service of the Divorce Application

Once the Divorce Application is filed and the Divorce Application is filed by you individually, you are required to serve the document to your former spouse in person. In uncommon circumstances, you may also find it difficult to serve the divorce application to the other party in person. It would be better to consult with a solicitor at this stage if you have not done so. A solicitor can also help you to seek exemption from the service.

Divorce Hearing

In most cases, you are not required to attend a court hearing if you have applied for divorce jointly or there are no children under 18. If you have applied for divorce individually and there is a child of the marriage under 18 years of age, the court will require a hearing.

The divorce hearing is conducted electronically.

At the divorce hearing, a Registrar will hear the divorce application. If the Registrar is satisfied that all the legal requirements for divorce are met, the Registrar will isse a divorce order at the hearing.

Children and Property

Divorce only deals with the legal ending of the marriage. Issues related to children (custody, visitation and child support) and property settlement are typically dealt with separately. There is also a time limitation regarding property settlement starting to run once the divorce is granted. It is better to consult with a solicitor to obtain strategic advice as to whether you should apply for divorce first or resolve your property settlement and/or children disputes first.

What if I am served with a Divorce Application?

If you are served with a Divorce Application, you need to diarise the hearing date shown on the divorce application and make sure that you or your solicitor will appear for the divorce hearing.

You will need to consider whether there is a necessity to file a Response if you do not agree with any particular facts in the Divorce Application. If so, you need to decide whether you engage a solicitor to prepare a Response on your behalf.

The Court would like to know whether the parties have met the eligibility criteria as above in the Response. For example, if you believe you have not separated from your former spouse for over 12 months and you claim that the divorce application shall not be approved on this ground, you need to set out your case in the Response.

Please avoid drafting a long-winded story of your marriage and separation in the Response. This may result in further misunderstandings and delays in your case.

If you have any queries about the divorce application, please book an appointment with our team for a confidential discussion.