Tribe's Guide to

How to get a Divorce

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Contents

Introduction

Introduction

Australia has one of the most enlightened divorce laws in the world. If you have no special circumstances, if you are on reasonable terms with your former partner (so that you can make a joint application), if you can afford the filing fee and if you have reasonable digital skills and resources – you can have an ‘easy’ divorce. But this is a lot of ifs.

This Guide will help you orient yourself in the process of divorce—because a process it mainly is–whether you just need an overview or if one or more of the more problematic scenarios apply. We’ll start with quick tour of the standard divorce landscape, and then drill down to some technical areas.

Chapter 1

Divorce basics

Where to find the law of divorce?

The law about divorce in Australia comes from the Family Law Act, 1975. This is a Commonwealth law and it applies in every state and territory except Western Australia, which has its own Family Law Act, 1997. The family courts website is a good source of detail about Commonwealth family law.

What court grants the divorce?

Most divorces are granted by the Federal Circuit of Australia, or in Western Australia, by the Family Court of Western Australia. The Family Court of Australia also makes divorces from time to time, but in special circumstances only. In this Guide, we will simply refer to ‘the family court’ to cover all of the possibilities.

Who is eligible for divorce?

You can divorce in Australia if you or your spouse is an Australian citizen OR if you usually live in Australia and have lived here for 12 months immediately before your divorce application OR If you regard Australia as your home and intend to live here indefinitely.

What are the grounds for divorce in Australia?

Australia has a no-fault system for divorce. The law requires that the marriage has irretrievably broken down. To prove this, you need only to show that you have been legally separated for at least 12 months.

What is legal separation?

The law does not require that you are physically separated though there are special requirements for demonstrating separation under one roof. The law does generally require, however, that one or both of you have expressed to the other that the relationship is permanently finished. It this date, the date that this communication has been made, that you should record as your date of separation.

Separation can be a simple matter to establish or not. The date of separation is a vitally important date, however, and must be clear and demonstrable.

For further details, including important information about how to establish legal separation, including see Tribe’s Guide to Family Separation.

The cost of filing for divorce

The usual fee

The standard fee payable upon filing a divorce application is $910.

Reduced fee

You can apply for reduction of the fee to $305:

  • if you hold a health care or concession card
  • if you have been granted Legal Aid
  • if you are receiving youth allowance, Austudy or ABSTUDY
  • if you are aged 18 or under, or
  • if you are in prison or detained in a public institution

If one of these circumstances applies, you must tick the appropriate box on your divorce application and upload a document or card that proves the circumstances with the divorce application when you are asked to do so.

If none of these circumstances applies, you can still apply for reduction on the general financial hardship ground. You do this by completing the form Application for reduction of payment of divorce or decree of nullity – financial hardship and submitting this with your application for divorce.

Do I need to have a solicitor for my divorce?

It is not necessary to have a solicitor to either prepare your divorce application or appear in the family court for your divorce hearing. Most people don’t. The standard divorce procedure is relatively easy for most people to manage themselves, including the appearance in the family court if this is necessary.

On the other hand, you might choose to have a lawyer for a number of reasons, including that your divorce circumstances have unusual features that have legal consequences.

Talk to Tribe about your concerns about managing your own divorce process. We can also help you with your application for divorce and provide legal advice and assistance on specific issues.

How long does a divorce take?

Depending on where you live and the current workload in your local family court, your divorce will take about four months from the date of your application, if there are no delays or special circumstances (for example, if the court has asked for more information about arrangements for the children).

A divorce is finalised one month and one day after it is granted (whether that happens in chambers or if you appear in court) unless there are special circumstances. The court won’t send out your divorce certificate. On the next working day after your divorce is finalised, you will be able to print a digital divorce certificate directly from the Commonwealth Family courts Portal.

Do I have to go to the family court for my divorce?

You only have to appear in court for a divorce hearing if you are the sole applicant for the divorce and there are children under the age of 18 years or other special circumstances (e.g. that your spouse has filed a Response to Divorce form disputing facts you have put in your application).

Should I make a joint or sole application for divorce?

Divorce is easier if you can make a joint application with your spouse. Why?

Funds. You might be able to agree to split the cost of the fee between you. If you make a sole application, you will have to pay the whole fee.

Going to family court. Even if there are children under 18, you won’t need to go to family court if you apply jointly unless there are other special circumstances.

Service. If you make a sole application you will have to ‘serve’ the documents on your spouse. You can’t do this personally. If you apply together, there’s no requirement for this complex process.

Relationship capital. It might be healing or at least good practice to work together successfully on a project that furthers both of your interests, perhaps especially if you will be co-parenting into the future, even if that project is divorce. (Believe it or not, divorce can be a positive experience.)

But what if a joint application is just not possible?

No problems. There are many sole applicants for divorce. There’s more process involved but it is totally doable. And by following through with it, you are making a firm statement about your own future. Which matters more than anything.

Can I fight a divorce?

You can fight a divorce only by demonstrating that the grounds for divorce are not satisfied. This is harder in Australia than it is in many other Western countries, including in the UK and the US.

When can I re-marry?

To marry, you must lodge a Notice of Intended Marriage with a marriage celebrant for a minimum of 30 days. To do this you must provide the divorce certificate. You should not start to arrange a new marriage until you have that document in hand.

Your Will

The laws about Wills do not recognise separation as a ground for invalidating a Will. Although a Will is always liable to challenge, if you die with a Will between separation and divorce, in the ordinary course, property will pass to your spouse (or not) as you have provided in it.

If you die without a Will between separation and divorce, your spouse may receive property under your state or territory’s intestacy laws. It is for this reason that we strongly recommend that you change your will immediately after separation.

Foreign marriages

You can receive a divorce in Australia for a marriage made in another country if your marriage can be proven to be valid according to the laws of the country in which you married and if you satisfy the eligibility requirements for applying for an Australian divorce. [For details, see Eligibility for divorce above.] You do not have to divorce firstly in the foreign country.

Disputes about property, finance and parenting

The family court treats divorce separately from other disputes between married partners at the end of their relationship.

Unless there are very special circumstances, even if the parties are vigorously in dispute about parenting, property or financial issues, in the family court or elsewhere, the divorce application will likely be made and granted without any effect on those disputes, and without the disputes delaying the divorce.

Tribe can help you make decisions about how to go about your divorce and provide advice about your eligibility.

Chapter 2

The Mechanics of Divorce

Preparing your Application for Divorce

Applications for divorce must currently be submitted to either the Federal Circuit Court or to the Family Court of Western Australia.

In most circumstances, you are now required to file your Application for Divorce online (by e-filing). You will need access to a computer, scanner and printer. If you one of the many Australians who don’t have these access to these facilities, contact the National Enquiry Centre and they will send you paper forms.

If you are a member of a same-sex married couple and wish to get divorced, you currently cannot e-file. You should also contact the National Enquiry Centre.

You will need a Mastercard or Visa card to pay the fees for the divorce at the time you wish to file the application. The family court does not accept your non-ownership of one of these as a reason not to e-file. If this is a real problem for you—again, discuss your concerns with the National Enquiry Centre.

Additional documents

It’s a good idea to have all of the likely additional documentation that you know you will be required prepared and organised before you start your application.

Marriage Certificate

All applicants for divorce will be asked to file their Marriage Certificate. You can use the ceremonial version or the one provided by the Office of Births, Deaths and Marriages. You don’t have to provide a certified true copy or an original.

If you were married overseas, you will need a valid marriage certificate from the country in which you were married. If it is in a language other than English, you must provide a certified translation.

Other documents

Depending on your circumstances, you may also need to submit:

  • An affidavit by the translator of your foreign marriage certificate.
  • Your written application for a Reduced Fee.
  • Your Australian citizenship certificate, Australian passport or other proof of citizenship.
  • A scan of your concession card or other proof in order to obtain the reduced fee.
  • Two separation-under-one-roof affidavits
  • An affidavit explaining why you can’t obtain a copy of your foreign marriage certificate
  • A marriage counselling certificate
  • An affidavit about your short marriage.
  • Change-of-name affidavit
  • Affidavit providing evidence of eligibility to apply in Australia.

Tribe can help you to prepare your separation under one roof affidavits.

If you have any queries about other documentation that might be needed for your divorce, make a time to talk to us before commencing your application.

Electronic filing

The digital era has arrived in family law. The required method now for applying for a divorce is by e-filing (electronically submitting) your application to the family court via the online Comcourts portal.

Before you can start on the application, however, you must register as a user for this service. Do this here or go directly to the Comcourts portal at https://www.comfamily courts.gov.au/ and register as an individual user. When you have successfully done this, you will be sent login details.

Once you can login to the portal, try to make sure you have electronic copies of your marriage certificate, credit or debit card, and any other documentation (see ‘Additional Documentation’ above) ready to upload. But don’t worry if you have caught unawares here. You will be able to save your application without submitting it if you realise part-way through that you will need additional documents.

So then it’s time to commence your application! Use this guide, published by the Federal Circuit Court, to steer your way through to completion of the filing process:

Step-By-Step Process for Making An Application For Divorce
From: http://www.federalcircuitfamily court.gov.au/wps/wcm/connect/fccweb/how-do-i/divorce/apply-for-a-divorce/apply-for-divorce

  • Select   start-new-file  .Even if you have had previous family law proceedings, divorce is dealt with separately to parenting and property proceedings.
  • Tick a box to confirm whether you are filing on behalf of a law firm or on your own behalf and select Continue or Confirm (if required).
  • Read the eFiling obligations and tick the box to confirm you understand and agree to the eFiling obligations then select Confirm.
  • Select Application for divorce from the drop-down box then Continue.
  • Select the appropriate family court then Continue. If you are located in Western Australia it is important to select Family Family court of Western Australia.
  • Add in a title and a description so you can easily find the application when you save it and if you need to go back into it at another time then select Create then OK to confirm. Note: applications remain on the system for 90 days and are then automatically deleted for security purposes.
  • Complete Step 1 Parts A – F – selecting Save at each page. When you have completed all the parts you should have green ticks against all the headings. If you don’t, go back and check each page is complete.
  • Select print preview to look at the document and check the contents. It is important to check the information in the application is correct at this stage before you lock the application at step 3.
  • At Step 2 upload any required or additional documents. The documents to be uploaded will depend on how you answered the questions in Part A – F.
  • At Step 3, select  Lock and Continue – you are unable to make any changes once you have locked the application. The application will be deleted after 90 days if there is no activity.
  • At Step 4 print the application. You will need to sign the Affidavit for eFiling Application (Divorce). If you are lodging a sole application just the applicant must sign the affidavit before a lawyer or a Justice of the Peace (JP). If you are lodging a joint application, both parties must sign the affidavit before a lawyer or a JP. The affidavit can be signed by both parties at the same time or separately, but both signatures must be witnessed by a lawyer or JP (if the signatures are witnessed at the same time it can be by the same lawyer or JP). If both parties are unable to sign the affidavit, then two affidavits can be uploaded together.
    Helpful hint: It is important if you have your affidavit witnessed by a Justice of the Peace that the JP provides their JP number.
  • At Step 5 upload the signed Affidavit for eFiling Application (Divorce). Note: just the Affidavit of e-Filing is required, the application does not need to be uploaded again.
  • At Step 6 download the brochure Marriage Families and Separation. This is a compulsory document that must be read by all parties.  If you have filed a sole application you must include this document when you serve the documents on the other party.
  • At Step 7 submit the application and pay the filing fee (if you did not apply for a reduction of fees at Q.1) then select the state and location where you would like the divorce to be dealt with. You will be required to attend if you lodge a sole application and there are children under the age of 18 years or you select you wish to attend at Q.2.
  • Select a family court date. All divorces are listed in family court even if you are not required to attend. The dates provided here are the next available dates and cannot be brought forward.

Tribe can advise you and check on your self-prepared divorce documentation or fully prepare your documentation for you.

Marriages of less than two years duration

If you apply for divorce within 24 months of the date of your marriage, you will be asked to upload a marriage counselling certificate, or alternatively, an affidavit in which you ask for family court’s permission to divorce without a counselling certificate.

So there are two possible courses of action. Under the first, you attend marriage counselling (your spouse is not required to attend) and discuss the possibility of reconciliation. And then get a certificate from that counsellor to the effect that you have done so. That’s it. The second method is to apply for the family court’s permission for an early divorce without a counselling certificate by filing an affidavit with your divorce application that explains why you have not attended counselling, the reasons for that and any other special circumstances

Method 1: Going to counselling

If you are taking the first route, attend family counselling and ask the counsellor to complete and sign the certificate ‘Counselling certificate for applicants married for less than two years’. The certificate will state that you have considered reconciliation (that is, thought about it carefully) with the assistance of the family counsellor. That is all that is necessary. It can happen in one session.

Method 2: Short marriage affidavit

There are lots of reasons why joint family counselling might not be a good idea in your circumstances, including because your spouse would not come along, or if they cannot be contacted, or if there has been violence in the relationship.

An affidavit is a sworn or affirmed statement of evidence to the family court. It should be in your own words. There are some legal technicalities in the form of the document itself, and in its contents. In summary, however, you will need at least to explain to the court, in the body of the affidavit, the details of the end of your relationship and separation, and most particularly, about the circumstances around the fact that you are not attending counselling (including any efforts you have made to contact or persuade your spouse, if this is relevant).

Tribe can advise you in relation to your short marriage affidavit or we can draft the affidavit for you.

Service of a divorce application

An Australian divorce application made by a sole applicant must be properly served (that is, posted or delivered by certain, quite specific means) to the other party.

You don’t have to serve your divorce documents if you are making a joint application for divorce.

Proof of service of the divorce documentation must be e-filed at Comcourts after the application has been filed and before the scheduled family court date for the divorce. There are two methods of getting this proof. Under both methods, there are specific procedures to follow and forms to be completed (and in some cases, signed, before an authorised person). Find these forms and carefully follow the detailed directions in the family court’s Divorce Service Kit

Two Methods for Service of Divorce Documents

Warning: Dry and technical material ahead! (But important to get right.)

Method 1: Service by post. This method does not equal ‘stick your documents in an envelope and mail them to your spouse’. There are specific forms to be completed and affidavits to sign. Very importantly, for this mode of service to be accepted by the family court, your spouse will need to sign and return an Acknowledgement of Service form after they receive your package. If you cannot count on this cooperation, or you are unsure of their address, do not use this method.

Method 2: Service by hand. Be careful here also. This method requires a person over 18 years to personally deliver the documents to your spouse. But this person cannot be you. The rules about how to conduct a proper service by hand are precise: it is best to seek the services of a professional process server if you can afford it. (Metropolitan service usually costs about $100 for a not-problematic case.)

Follow the directions in the family court’s Divorce Service Kit carefully and you won’t go wrong.

Tribe can advise you on all and any issues about serving your divorce.

Chapter 3

Your divorce hearing

Please note: All divorce hearings in Australia are held electronically unless one or both of the parties requests an in-person court event.

Do I have to attend the divorce hearing?

In the usual case, you will not be required to attend a court hearing for your divorce application unless you are making a sole application for divorce and you have a child under 18. 

If you have needed to file an affidavit about any aspect of your application, including separation under one roof, you, and anyone else who has made an affidavit, should be prepared to appear in court to be asked about the material in the affidavit. This is whether you have made a sole or joint application. 

Do both parties have to attend the divorce hearing?

If you are asked to attend, the other party will also be invited, and has a right, to attend. They don’t have to appear, however, unless they are the sole applicant and there is a child under 18, if they made an affidavit that has been filed with the court, or if they want to put their own views forward about material you have filed with your application.

What happens if I miss the divorce hearing date?

If you were required to attend the divorce hearing, and you miss the date, it is possible that your application for divorce has been dismissed and you will need to start again. It is possible, also, that the hearing was adjourned in your absence. Contact the registry of the court to find out what happened.

How to adjourn a divorce hearing

Make contact with the registry of court you filed your application in, by sending a letter or an email, well in advance of the court date, explaining that you are not able to attend on the specified date and why. Ask for the hearing to be adjourned to a new date.

What happens at a divorce hearing?

On the day of your hearing, check the court lists for the time and place of your hearing.

Be ready nice and early, with the link open or by your phone at least 30 minutes before the scheduled time. 

Your case may be called with other divorce cases. 

You don’t have to sit or go into court with the other party. You don’t have to be apart either.

Be polite and moderate in your language to the judicial officer and also when referring to the other party.

The judicial officer will review the application and check that the documents have been properly served on the other party (sole application only). They may ask you a couple of questions, especially if there are children involved.

If it is a sole application by you, and the other party has decided to attend, the judicial officer may ask them if they wish to oppose the application. They will remind the party that there only ground for doing so is that the relationship has not been irretrievably ended by a legal separation of at least 12 months.

If the other party mentions outstanding property or parenting issues, they will be told that these issues must be dealt with by separate applications to the court and will not hold up a divorce application.

If the formalities of the application—including those for serving the documents– are all in order, the divorce will be granted and the judicial officer will say so in a declaration of the divorce order. If the formalities are not correct, or the court requires additional information, the court will adjourn your application to a new court date.

After the judicial officer states the orders, you thank the court. You will then be invited to leave. 

What should I wear at my divorce hearing?

Appearing in court is a serious occasion. It is good to demonstrate respect for the court in all that you do, and are, there. Dress as you would for any important daytime occasion.

When is my divorce final?

One month and a day after the day of the hearing on which the divorce orders were made.

Where can I get a copy of the divorce certificate?

The court no longer sends a physical copy of the divorce certificate to the parties. Depending on where and when you divorced, you may be able to download a copy of the certificate directly from your case file at the Comcourts portal.  The certificate will be available in your file, in the portal, on the next business day after the divorce becomes final. This happens one month and a day after the hearing. See Tribe’s Insight How to Get a Copy of Your Divorce Certificate for more details. 

Chapter 4:

Potential problem areas

Evidence of citizenship, residence or domicile

You can apply for a divorce in Australia if either you or your spouse:

  • are an Australian citizen, by birth, descent or by grant of Australian citizenship, or
  • are domiciled in Australia. This means that you regard Australia as your home and intend to live in Australia indefinitely, or
  • are resident in Australia. This means that you ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

Unless you are a citizen of Australia by birth or descent you will be asked to provide documentary evidence of citizenship alongside your application for divorce. You may also be asked to provide evidence of residence or domicile.

Disputes in relation to children

Many couples have outstanding disagreements about parenting arrangements at the time they apply for a divorce. It is possible that, if the  court is cannot be assured at the hearing that proper arrangements are in place for the children’s care, there will be an adjournment (delay for another scheduled court date) until additional information is provided or the issues are resolved. The court also has power to order that the couple seek attend counselling or attend mediation about the issue, or even to order a report from a court appointed family consultant. This is quite rare however.

Disputes about parenting in court properly take place in a case about parenting orders not in a divorce hearing. Even if you are in serious dispute about a parenting matter, the court will most likely grant the divorce, although only when it is satisfied that resolution action of some type is in train. 

The key points here:

  1. Divorce court is not the place for arguments about arrangements for parenting. You will not stop the divorce or likely even delay it by disagreeing with the other parent’s description of arrangements for the children in the divorce application.
  2. If you are in dispute about parenting matters, be prepared to explain to the court what action is being taken to resolve the disagreement (even if the answer is ‘I have filed an Initiating Application for parenting orders’). Depending on the issues, you may need to be able to explain to court how the welfare of the children is being protected through arrangements for their care, if this is being disputed but the other parent.

Talk to Tribe about your options for dealing with conflict about parenting arrangements.

Problems with service

The most frequent source of difficulties around divorce is the service of the divorce documentation on one spouse after a sole application has been made by the other. This can be very difficult, as the family court takes seriously the principle of justice that a person should have notice of, and also should have an opportunity to respond to, a legal action that is started against them. And divorce is a serious legal process, though quite a personal one. There are solutions to service difficulties, however, although they sometime take a bit of time and effort to get around.

If you’ve tried and failed to get the documents served using the standard means, don’t despair. You can apply to the court for special arrangements in the circumstances of your case.

Talk to Tribe about your options for dealing with problems with service of your divorce.

Divorce can be a complex legal and emotional process, especially for a non-lawyer. If you are concerned about any aspect of divorce, Tribe can help you to understand the requirements and make your way through the maze of legal process,  Reach out to Tribe for a free Case Evaluation today.