In Australia, divorce is a separate and distinct issue from property divisions and children's matters, and it is usually a relatively simple and straight forward process.
Divorce is available on a no-fault basis, meaning that as long as some basic criteria are met there is no need for parties to prove the other was unfaithful or give reasons as to why they want the divorce.
The basic criteria
At the time of filing the Divorce Application, at least one party to the marriage is required to have Australian Citizenship (by birth, by descent or by grant), be domiciled here, or have ordinarily been living in Australia for 12 months prior to the Application being filed.
Separated for more than 12 months
At least one party to the marriage needs to consider the marriage to have ended on a specific date, and the date must have somehow been communicated to the other party.
In most cases it will be as easy as the date a person left the former marital property, and the parties are required to have been separated for more than 12 months at the date of filing the Divorce Application.
No reasonable likelihood of resumption of cohabitation
Finally, the parties must be able to satisfy the Court that there is no reasonable likelihood of resumption of cohabitation.
Some specific issues
Married less than 2 years
If parties have been married for less than 2 years (from the date of marriage to the date of filing the Divorce Application), the parties are required to attend counselling with a view to discussing the possibility of reconciliation.
In the event that the parties still want to divorce, they are required to file the certificate proving they have attended counselling before the Family Court will accept the application.
Separated under one roof
In some cases, parties can regard the marriage as over but have continued living together for a period of time.
In these cases, if it has not been more than 12 months since the parties physically separated, it will be necessary for the parties to file affidavit material providing evidence to the court in regard to their circumstances.
Periods of reconciliation
In other relationships, parties may separate and reconcile possibly several times before their final separation.
Parties can reconcile for a period of up to 3 months after an initial separation and still include the time they were initially separated as part of the 12 month period. However, where parties separate and reconcile for longer than 3 months, they will have to recommence counting their 12 months from the date of the subsequent separation.
Parties can apply for a divorce by completing and filing a Form 3 Application for divorce. These are available on the Family Court of Western Australia's website.
It is possible to apply jointly with your ex-spouse, or alternatively to apply as a sole applicant.
The current filing fee for a Divorce Application is $845. A reduced fee of $280 is available where the party filing the document holds a government concession card or can demonstrate financial hardship.
If you are making a joint application, both parties need to hold their own concession cards or must be able to demonstrate financial hardship for the reduced fee to apply.
There is no rule as to who has to pay the filing fee, but we generally see the parties share the fee where a joint application has been made by agreement.
The main difference between applying for your divorce as a sole applicant rather than jointly is that once the sole applicant has filed their Divorce Application they must then ensure that the other party is personally served with the documents (but the applicant is not allowed to effect that service).
Service can be effected by another party or mutual friend who is over 18 years, or you can engage a process server to do it for you.
Once service has occurred, you need to file documents at the Family Court to ensure that you can satisfy the Court that the other party was made aware of the application.
The hearing and the making of the order
If you have a child or children under the age of 18 years, it will be necessary for you or your legal representative to attend the divorce hearing.
If you don't have any children or they are all over 18 years, you can request to have the divorce application heard in chambers – neither you or your ex-spouse are required to attend this.
Where the court is able to be satisfied that both parties are aware of the proceedings, that the marriage has broken down irretrievably, that the parties have been separated for 12 months, there is no possibility of reconciliation, and that appropriate arrangements have been made for the children (if any), then the court may grant the divorce. The Divorce Order takes effect 1 month after it is made.
Where parties obtain a divorce and have not yet finalised division of their property matters, the parties have 12 months from the date of the Divorce Order to seek the Family Court's assistance with this matter.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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