In Australia, a divorce requires filing an application with the Federal Circuit and Family Court of Australia. The law governing divorce in Australia is Part VI of the Family Law Act 1975 (Cth).
This article outlines the prerequisites and process for applying for a divorce in Australia.
Can You Apply for a Divorce in Australia?
Status or Residency Requirements
The prerequisite for applying for a divorce in Australia is that the Australian court must have jurisdiction over your marriage.
If you were married overseas, you or your spouse must satisfy one of the following requirements to apply for a divorce in Australia:
1. Regard Australia as your home and intend to live in Australia permanently; or
2. Be an Australian citizen by birth; or an Australian citizen by descent; or an Australian citizen by grant; or
3. Ordinarily reside in Australia and have lived in Australia for 12 months prior to applying for a divorce.
Marriage Requirements
Your marriage to your spouse must be legally recognised. For example, you and your spouse must not be siblings, nor can the marriage have been entered into under duress.
Separation Requirements
In addition, prior to applying for a divorce, you and your spouse must have been separated for at least 12 months, with no reasonable likelihood of reconciliation.
If you and your spouse are still living under the same roof, it is still possible to satisfy the separation requirement. In such cases, additional evidence must be provided to the court, for example:
Not sleeping in the same room
Reduced joint outings or other shared activities
Refusal to share household duties
Separated finances, such as maintaining individual bank accounts, etc.
Counselling Requirements
If you and your spouse have been married for less than two years, the court will require you to attend divorce counselling before filing an application for divorce. The purpose of counselling is to explore the possibility of reconciliation with the help of a counsellor. After counselling, the counsellor will provide you with a document (counselling certificate) to confirm your attendance. If you still wish to proceed with the divorce, this certificate must be attached to your application.
If you are unwilling or unable to attend counselling, you will need to apply to the court for an exemption from this requirement. That is, you must file an affidavit along with your divorce application explaining why you or your spouse cannot attend counselling.
Divorce Application Process
There are two types of divorce applications:
1. Sole application
2. Joint application
Sole Application
For a sole application, only the applicant needs to sign the application. However, the applicant must complete the service (legal delivery of documents) process.
What is Service?
Service is a legal term. In the context of divorce law, service specifically refers to the process by which documents such as the divorce application are formally delivered to the other party in accordance with the relevant regulations.
Service may be effected by post (service by post) or in person (service by hand), among other methods.
For a joint application, service is not required.
Methods of Service
Service by post
If you are confident that your spouse will sign and return the Acknowledgment of Service, then service by post is suitable for you. If your spouse will not sign the acknowledgment, you should arrange for service by hand.
The applicant should take all reasonable steps to ascertain the other party’s address. If the spouse’s address genuinely cannot be determined, the applicant may apply to the court for an exemption from service, or for substituted service.
Service by hand
Please note: the applicant cannot personally serve the documents.
The applicant must arrange for a person over 18 years of age to deliver the documents. This person is known as the server. The server may be a family member, friend, or a professional process server.
If your spouse signs the Acknowledgment of Service, the server must complete an Affidavit of Service by Hand and attach the original signed Acknowledgment of Service.
If your spouse does not sign the Acknowledgment of Service, the server should explain the circumstances in the Affidavit of Service by Hand.
Service on the other party’s lawyer
If the other party has a lawyer, and the lawyer is willing to accept the documents, the applicant may serve the documents on the other party’s lawyer. The lawyer should sign the Acknowledgment of Service as evidence of receipt.
Time Limits for Service
If the other party is within Australia, service must be completed at least 28 days before the court hearing commences.
If the other party is overseas, service must be completed at least 42 days before the court hearing commences.
If Service Cannot Be Completed
If you have made all reasonable attempts but are still unable to deliver the documents to your spouse, you may apply to the court for one of the following orders:
1. Service with conditions
Such as substituted service: if you can identify a third party (such as a relative of the spouse) whom the court considers will pass the documents on to your spouse, the court may allow you to serve the documents on that third party.
2. Dispensation of service
Only in exceptional circumstances will the court waive the service requirement.
In the case of a sole application for divorce, if the parties have children under 18 years of age, both parties must attend court.
Joint Application
If you and your spouse both agree to divorce, you may apply jointly. In this case, only one party needs to complete the application and provide a copy to the other, who then reviews and signs it. That is, service is not required in this situation.
In the case of a joint application, unless there are complicating circumstances, you and your spouse generally do not need to attend court.
Children
In addition, if you and your spouse have children under 18 years of age, both parties must make proper arrangements for the children and submit the details of those arrangements to the court, for example:
How much time the children will spend living with each parent
How the children will maintain contact with each parent
Arrangements for the children’s education, health, and financial support, etc.
The court will only grant the divorce after confirming that proper arrangements have been made for the children.
Filing the Application
Australian divorce applications must be filed through the Commonwealth Courts Portal website, and the supporting documents must also be uploaded via this website.
Finally
If you are unsure whether you can apply for a divorce in Australia, have questions about the application process, or need a professional to assist with filing your application, please feel free to seek advice from our experienced lawyers.
