Divorce
Sole ground for divorce
The sole ground for a divorce is that the marriage has broken down irretrievably. This is established if you have separated and lived apart for a period of not less than 12 months before the filing of the application for divorce. However, there may be circumstances where you are living under the one roof (see "Separation" below).
Note: On considering an application for divorce, the Court must be satisfied that there is not a reasonable likelihood of a reconciliation between the parties. If there is, the Court may adjourn the hearing and order that the parties attend counselling to explore reconciliation.
Separation
Separation involves the break down of the marital relationship as a whole and means more than the physical separation of the partners. Normally, separation occurs when the spouses cease to live together in the same residence. It is a requirement that one spouse communicate to the other their view the marriage has broken down and they wish to separate, and then act upon it.
However, people may continue to live under the one roof and be considered separated if the Court determines that the marital relationship has broken down. The Court will look to a number of factors in determining if the parties have truly separated or not. These factors may include whether the parties have:
- ceased to sleep together;
- ceased to engage in social activities together;
- ceased to have joint finances;
- advised other people that they consider themselves separated.
Spouses may sometimes resume living together after an initial separation. Provided that this period of resumption of cohabitation is no more than 3 months, the earlier period of separation may be added to the later period of separation in calculating the 12 month separation period required for a divorce Application.
Applying for divorce in the Federal Magistrates Court
Either you or your spouse individually or jointly, may apply for a divorce after a 12 month separation period. It is done by way of written application filed in the Federal Magistrates Court of Australia. A prescribed application form is used. A filing fee is payable. This fee may be waived depending on the financial circumstances of the applicant. Your marriage certificate must also be filed. If the original is not available, a copy can be obtained from the Registry of Births, Deaths & Marriages. The application must then be served upon the other spouse - called "the respondent". The proper serving of the application is important as the Court must be satisfied at the hearing that the respondent has personally received the application, unless it is a joint application. In the event the respondent cannot be personally served with the application, then the applicant may apply to the court for permission to give the respondent some other form of notice of the application.
The application must include details of the marriage and of the breakdown of the marriage including the date of separation. If there are children of the marriage under the age of 18, it must also contain sufficient details to allow the Court to determine whether proper arrangements have been made for them. If you were born overseas, the court must also be satisfied either you are now an Australian citizen and domiciled in Australia, or have been ordinarily resident in Australia for the past 12 months.
Where you have been married for less than two years at the time of the filing of the application a certificate from a counsellor must be filed indicating that you and your spouse have considered reconciliation with the assistance of the counsellor. Alternatively, you may ask the Court to waive the counselling requirement in special circumstances.
The application for divorce will be listed for hearing approximately six to eight weeks after it is filed. The application must be served on the respondent at least 28 days before the hearing or 42 days before the hearing when the other party is served outside of Australia. The respondent may attend the hearing to dispute whether the parties have been separated for more than twelve months or whether appropriate arrangements have been made for the children. Generally however, the respondent does not appear at the hearing.
As the applicant, you will need to prove that your spouse has been properly served within the required time. This can be proven by the respondent attending the hearing and confirming receipt of the papers. In the alternative, the applicant or their lawyer may file an Affidavit of Service sworn by the person who served the Application (this person cannot be the applicant spouse). Service can be effected by post provided the respondent signs an Acknowledgement of Service within the time periods for service. The Registrar may also ask questions about any aspect of the application, including the arrangements for any children. If there are no children of the marriage under 18, or if it is a joint application, the parties don't need to attend the hearing. However it is a good idea to attend the hearing to ensure any problems can be dealt with.
If the Court is satisfied that the applicant has complied with the requirements of the Family Law Act for divorce, a Decree Nisi of the dissolution will be granted at the hearing. You are still legally married until the divorce becomes final. The divorce will become final (Absolute) one month and one day after the hearing.
After the divorce
The divorce has no effect on rights or obligations relating to property, children or child support. Applications for Orders in respect of children can be made before or after the divorce. Any application in respect of property or spousal maintenance can be made before a divorce. If you file an application in respect of property or spousal maintenance after a divorce has been granted, then it must be filed within 12 months after the Decree becomes Absolute. After that period, a property application or spousal maintenance application can only be filed with the consent of the other party or proceedings commenced with special leave of the Court.
The granting of the divorce will not revoke any Wills that you or your spouse have made. The divorce will revoke any gift given in a Will to your spouse or any appointment of them as an executor, trustee or guardian. It is therefore advisable to carefully review your Will following divorce to ensure it has the effect you desire. A divorce may affect the rights of a party to the estate of the other party if they die without a Will.
A divorce may affect the entitlements of you and your ex-spouse under superannuation or insurance policies. It may also affect your social security entitlements, tax and immigration status.
On the divorce becoming Absolute, which occurs one month after the hearing, you are free to remarry. The Court will issue a sealed Order approximately 6 to 8 weeks after the hearing. A marriage celebrant may request to see the Order prior to a subsequent wedding.
