Divorce Law in Australia
The Family Law Act 1975 established the principles of no-fault divorce under Australian law. When granting a divorce the court does not consider why 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. Despite this, there are a number of criteria that must be met and appropriate evidence needs to be provided, forms needs to be filled in, affidavits may need to be prepared, a filing fee needs to be paid to the court, and at times an appearance in court may be required.
Where to File
2020 Update due to Covid Situation: Please note all filing must be done electronically until further notice.
An application for divorce needs to be filed in the Federal Circuit Court of Australia. An application may be made jointly by both parties, or solely by one party.
Upon filing the Application for Divorce, the matter will be given a hearing date depending on the court’s schedule. On the hearing date, you may or may not need to attend court.
Service
If the application is a joint one, there is no issue proving service.
If the application is a sole application, the court the court must be satisfied that the respondent to the application is aware of the proceedings and has had a chance to respond, should they wish to. You, or your lawyer will need to serve all the required documents on the other party and prepare an Affidavit of Service. Be aware that you as the applicant CANNOT serve the respondent.
The respondent must be served the application with sufficient time to respond, should they wish to. If they are residing in Australia, this is 28 days. If the respondent is not in Australia, they must be served the documents at least 42 days before the hearing. If this service period is not met, the court will stand the matter over on the return date.
A situation that sometimes arises is that the applicant is not able to locate the respondent. Some people simply walk out of a marriage and disappear, either in Australia, or they go overseas, perhaps back to their home country. In other cases, the applicant knows the address of the respondent, but it is an address overseas. If after making all reasonable attempts you cannot serve your divorce application on your spouse, you can apply to the Court for:
substituted service, or
dispensation of service.
If you are in this situation you should seek legal advice.
Jurisdiction
The court has jurisdiction to make a Divorce Order in the event one of the parties:
regard Australia as their home and intend to live in Australia indefinitely, or
are an Australian citizen by birth, descent or by grant of Australian citizenship, or
ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
Ground for Divorce: Separation
There is only one ground for divorce, which is, that the parties have been living separately and apart for at least 12 months. The parties must have been separated for at least 12 months at the date of filing of the application.
Separation Under One Roof
If you have been separated but living together, you will need to prove to the court’s satisfaction that the separation is genuine and has been so for at least 12 months. You will need to provide affidavits from both parties, and perhaps even from witnesses. If you are in this situation you should seek legal advice.
Grounds to Oppose a Divorce
There are only limited grounds on which to oppose a divorce, namely, that there has not been separation for 12 months, and/or, that the court does not have jurisdiction. If you wish to oppose an Application for Divorce, you will need to file a Response to Divorce, and appear in court. You should seek legal advice if you wish to oppose a divorce.
Similarly, if you do not oppose the divorce but wish to correct any errors in the Application for Divorce (for example if the children’s date of birth are recorded incorrectly, or if there are other factual errors in the Application for Divorce) you need to file a Response to Divorce.
Parties Married Less than 2 Years
If you have been married for less than 2 years, you need to attend counselling and obtain a counselling certificate before you can file an Application for Divorce. To arrange counselling contact the Family Relationships Advice Line on 1800 050 321.
Alternatively, if there are special circumstances, for example a history of family violence, your lawyer can prepare and file an affidavit seeking the leave of the court to grant the divorce without the requirement for counselling. If practicable, you can also wait until the 2 year period is satisfied.
In all cases, don’t forget there must also have been a 12 month period of separation at the date of filing the application.
Children
In the event there are children of the marriage aged under 18 years at the time of the divorce hearing, the court must be satisfied before making a Divorce Order that proper arrangements, in all the circumstances, have been made for the care, welfare and development of the children. The court may refuse to grant the divorce if it is not satisfied that the arrangements are satisfactory.
Attendance at Court for Divorce Hearing
Generally, if the divorce application is:
joint and there are no children of the marriage — attendance is not required;
joint and there are children of the marriage under the age of 18 years — attendance is not required;
sole and there are no children of the marriage — attendance is not required; and
sole and there are children of the marriage under the age of 18 years, you must attend.
It is also recommended that you or your lawyer attend the hearing if there are special circumstances such as:
separation under one roof;
being married less than 2 years;
issues with service in sole applications e.g. if the respondent is unable to be located, or is overseas;
if the respondent has filed a Response to Divorce.
Where attendance is required, your lawyer can appear on your behalf.
Conclusion
The process of divorce in Australia has been much simplified and it is certainly possible for mutually consenting parties to handle their own joint divorce application, so long as they are ready to spend the time involved in doing so. In sole applications, or in any application where there are complicating factors of the type mentioned in this article, it is best to seek some legal advice.
OK, so what does it cost?
Court Fees: $910 (or $305 if you have an Australian Health Care Card)
Process Server: $165 (only required for single applications)
Legal Fees: $660 fixed fee for joint application
Please contact Jano Family Law for a precise fixed fee quotation based on your specific situation.
What about children, child support, parenting, spousal support, and division of property?
These are issues that are treated separately to the divorce. Divorce is simply the legal ending of a legally valid marriage. We recommend using legally binding consent orders for the property settlement and to make arrangements regarding children and parenting.