In Australia the area of family law is covered by the Family Law Act 1975 (FLA) and covers any disagreements you might have after the break down of your marriage or relationship. This includes the criteria and requirements for a divorce application and also the procedure for dealing with disagreements where there are children and/or property involved.
Some questions you should think about when considering a divorce:
Have you been separated for 12 months or more?
In order to apply for a divorce you must be separated for 12 (twelve) months and one (1) day.
Do I have to move out?
No. Separation may be under the same roof, however it needs to be established that despite living under the one roof you have been separated and the marriage is irretrievably broken down in order for your application to be considered. An affidavit to prove this may be necessary.
Have you been married less than two years?
If you have been married for less than two years and want to apply for a divorce, you need to either:
- Attend counselling with your spouse to see whether a reconciliation is possible; or
- Seek permission from the court to apply for a divorce without attending counselling.
Do you know where your spouse is?
If you are a sole applicant in the divorce application it is generally necessary to know where your spouse may be in order to serve a copy of the application on them. Your spouse must be aware of your intention to seek a divorce and be given an opportunity to accept or dispute the application. In circumstances where you are unaware of their location, attempted service of the application on them must be established.
What are the steps to complete a divorce?
- Fill out an Application for Divorce Form
- Complete an Affidavit if there is disagreement regarding the date of separation.
- Certify copies of your Marriage Certificate, if the Marriage Certificate is in a foreign language, translate the certificate by certified translators
- If not born in Australia, certify copies of your Citizenship or passport
- File the application and all of the attachments. You will require money to pay for filing fees (in some instances, you may be entitled to a reduction or exemption in fee). The court will then seal your application with a court seal and give you a court date. Note: divorce applications may be lodged online electronically.
- Serve a copy of the sealed application on your spouse. You may pay a process server to do this step and there are special requirements for service in accordance with the legislation. Even if your spouse is overseas, service still needs to be complied with and if your spouse cannot be located, a Notice of Attempted service must be filed with the court along with an Affidavit.
- On the hearing date, you may choose to attend court or request that the matter be dealt with in your absence. If there are children involved, you are usually required to attend the hearing date.
- Provided there were no issues as to the date of separation and all of the criteria are met, the Court may order for your divorce. The divorce will be effective one (1) month and one (1) day after the date of the court order.
If you need help navigating your way through a divorce or separation, you don’t have to do it alone. Give Kenny Spring a call on 6331 2911 and we will help make the process as time and cost effective as possible.