Divorce in Australia The No Fault PrincipalDivorce in Australia follows the no fault principal, which was established by the FamilyLaw Act 1975.
This means that the court does not need to know the reason for the divorce,just that the marriage has broken down irretrievably.
When can I apply for a divorce in Australia?To apply for divorce in Australia, you and your spouse must have separated at least 12months ago.
In addition, one of you must be an Australian citizen, or must regard Australiaas their home and be living in Australia.
If you have been married for less than twoyears you will also have to participate in counselling to discuss the possibility ofreconciliation, prior to making the divorce application.
How do I apply for a divorce in Australia? You can apply for a divorce in Australia byfiling an application online, or by completing the necessary forms and posting them to aFamily Law Registry for filing.
You will need to send:• an Application for Divorce form which has been signed and sworn or affirmed by alawyer, Justice of the Peace, or an accepted witness.
You must include the original documentand two photocopies.
• a photocopy of your marriage certificate.
This does not need to be sworn, affirmed or certified.
• all other documents you think might be relevant to your application, such as a certificateof your citizenship or a photocopy of your visa.
You should include three copies of eachdocument in your application.
Can I apply for a divorce as the sole applicant?If the divorce application is made by you alone as a sole applicant, you will have toserve a copy of the application on the other party.
You, the applicant, will have to provideevidence to the court that the application has been served and received by the otherparty.
This is normally done by filing an Affidavit of Service with the Court.
The other party may then file a Response to Divorce if they disagree with any of the informationprovided on the application or if they oppose the divorce.
There are very few opportunitiesto oppose the divorce unless the parties have not been separated for 12 months or if thecourt does not have jurisdiction.
If the other party does not oppose the divorcethen they do not have to attend the hearing.
You, the applicant, will also not have toattend the hearing if there are no children under 18 and you have filed the Affidavitof Service providing evidence that the application has been served.
Difficulties with service If you do not know the location of your ex-spouseor have difficulty serving the divorce application, you will have to apply to the court throughyour divorce lawyer for substituted service or dispensation of service.
Substituted service allows you to serve the divorce application on a family member whohas contact with your ex-spouse or at their place of work.
The dispensation of serviceis granted only in specific circumstances as it means that a divorce will be grantedwithout the other party being made aware that the hearing is taking place.
If you were married overseas and now live in Australia, you can still apply for divorcein Australia.
You must supply a copy of the marriage certificate along with an Englishtranslation, if applicable.
Either you or your ex-spouse must be an Australian citizen,or one of you must have resided in Australia for longer than 12 months and intend to livehere permanently.
How long until the divorce is granted?The divorce is normally granted one month and one day after the hearing.
If you are planning on remarrying you should wait until the divorce has been granted beforemaking preparations.
Not all divorces are finalised at the first hearing.
In some situationsthe court will require further proof of the date of separation, or that adequate arrangementshave been made for any children under the age of 18.
Will the divorce resolve my children and property issues too?The granting of a divorce does not deal with issues about property or make formal parentingorders.
These must be dealt with separately to the divorce application.
Decisions about property and custody issues can be done any time after separation andup to 12 months after the divorce has been granted.
What to do next If you or someone you know wishes to applyfor a divorce, or has been served with an application for divorce, it is important toobtain legal advice as soon as possible.
Go To Court Lawyers operate a Legal Hotlineon 1300 636 846 where you can talk directly to a lawyer from 7am to midnight, 7 days aweek.
Your call will be treated with the strictest confidentiality and without judgement.
The lawyer will assess your matter and recommend a course of action.
Should you need a Court lawyer, even at very short notice, the Legal Hotline staff willbe able to arrange one for you.
You can also request a call back via the website gotocourt.
Auand a lawyer will call you back to assess your matter.