In Australia, spouses can file for a divorce once the pair have been separated for a period of no less than 12 months. Once the decision has been made to apply for a divorce, an electronic application must be made to the Federal Circuit Court of Australia through the Commonwealth Courts Portal.
This blog aims to provide Australian couples with some clarity with regard to the varied steps involved in filing for divorce.
There are two distinct ways that parties can apply for a divorce:
Filing an application jointly: An application for Divorce can be filed jointly by both spouses. This method is particularly beneficial if there are children under the age of 18, as there will be no requirement for either party to attend court.
Filing a single application: This occurs where one spouse makes the decision to file an Application for divorce without the involvement of the other party. This application needs to be personally served on the other party - and in circumstances where there are children under the age of 18, the filing spouse is required to attend the divorce hearing.
What needs to be included in an Application for Divorce?
Generally speaking, the process of applying for a divorce is relatively straightforward. The applicant is required to provide details relating to both parties' current residence(s), any arrangements that may be in place pertaining to children under the age of 18, and similarly any Court Orders or agreements in place at the time. In most cases, these types of documents should be attached to the application.
Parties also need to attach a copy of the relevant Marriage Certificate to the application - and if the filing party was not born in Australia, any documentation sufficiently proving their Australian citizenship must also be included with the application (e.g. a Passport or Citizen Certificate).
What if I've lived with my spouse within the last 12 months?
In circumstances where spouses have separated, but have continued to live together under the one roof within the 12 months prior to the application for divorce being filed, each spouse will be required to file an affidavit evidencing the fact that there has been a change in circumstances, and that the marriage has broken down to an irretrievable point.
If only one spouse is filing the application for divorce, they will be required to file an affidavit in support of this, along with an affidavit made by a supporting witness sufficiently addressing these circumstances.
Parties looking at potentially filing for divorce may wish to read this 2013 piece published by The Federal Circuit Court of Australia, which details exactly what information needs to be included in the affidavit.
When does the divorce take effect?
When lodging the documents online, the applicant is required to select a date for their divorce hearing, which will in turn take place before a Registrar. Should the Registrar decide to grant the divorce, it will take effect exactly one month and one day after the court listing.
Is filing for divorce the same as making an agreement on property and care arrangements for the children?
Coleman Greig has found that there is a common misconception that applying for a divorce requires spouses to necessarily separate matrimonial property and/or decide on care arrangements for the children - although it is important to note that this is not the case. An application for divorce is simply either one, or both parties applying to the courts and making the declaration that their marriage is over, with no legitimate prospects of reconciliation.
An agreement relating to these issues can be reached either before or after the divorce application has been filed. If you wish to file for divorce prior to you and your spouse reaching a formal agreement on the separation of the matrimonial property, you will only have a period of 12 months following the granting of the Divorce Order to commence proceedings without seeking leave of the court.
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.