Divorce


 
Divorce

 

What is divorce?

Divorce is the process through which you can end a marriage.

However, it is important to understand that the granting of a divorce does not decide issues about:

If you want to make arrangements about property or parenting issues, you can either:

  • make an agreement with your spouse and file it with a court, or
  • seek orders from a court if you and your spouse cannot reach an agreement.

It is important to be aware that if you want to apply for maintenance for yourself or for a division of property, you must file a separate application within 12 months of the date of the divorce becoming final. Otherwise, you will need the court’s permission to apply.

 

What is no-fault divorce?

The Family Law Act 1975 (Cth) established the principle of no-fault divorce in Australia.

What does this mean?

This means that a court does not consider why a marriage ended. In short, it is not interested in which partner was at fault in the marriage breakdown.

 

What are the grounds for divorce in Australia?

The only ground for divorce in Australia is the irretrievable breakdown of the relationship (meaning that there is no reasonable likelihood you will get back together), demonstrated by 12 months of separation.

If there are children under the age of 18, you must satisfy the court that proper arrangements have been made for them.

 

How do you obtain a divorce in Australia?

 

You must have a valid marriage

In order to qualify for a divorce in Australia, you must satisfy the court that you have a valid marriage (you must provide a marriage certificate (with a sworn translation into English if the marriage took place in a non-English speaking country)).

 

You or your partner must be present in Australia

You can apply for a divorce in Australia if either you or your spouse:

  • regard Australia as your home and intend to live in Australia indefinitely, or
  • are an Australian citizen by birth, descent or by grant of Australian citizenship, or
  • ordinarily live in Australia and have done do for 12 months immediately before filing for divorce.

 

You must satisfy the court that the marriage has irretrievably broken down

You will need to show that the marriage has irretrievably broken down. This involves satisfying the court that you and your spouse have lived separately for at least 12 months, and there is no reasonable likelihood of resuming married life.

 

You must serve your spouse with the relevant documents

You must satisfy the court that the other party to the divorce has been served with a copy of the application at least 28 days prior to the divorce hearing, or if they live overseas, 42 days prior to the date of the hearing

 

If you have children, you must satisfy the court that satisfactory arrangements have been made for their care

You must satisfy the court that appropriate arrangements have been made for any children of the relationship.

 

How do Monardo Solicitors approach divorce ?

At Monardo Solicitors, we understand that divorce is an extremely stressful time in anyone’s life. Our primary objective is make sure you understand not only what your rights and responsibilities are but what you may be entitled to.

Most importantly, we will work with you to ensure that the process runs as smoothly as possible. In most situations, we find that we are able to come to an agreement between parties. However, if you find you need to go to court, you can rest assured that you are in the hands of a team that has had a great deal of experience in litigation.

 

How does our divorce form work?

Our priority is to take out as much of the stress from divorce as possible.

So, we’ve designed a form that you can fill in quickly and easily.

We will then use this information to fill in an Application for Divorce for you.

What are the benefits of this?

It will save you time and give you peace of mind because you know your Application for Divorce has been prepared by a solicitor, so will meet the requirements set out by the Family Court of Australia. There is nothing worse than being told by the Court that you need to re-file your Application for Divorce because there is a problem with your application, especially at a time when you are keen to move on with your life.

 

Step One: You fill in the Divorce form on this website

You simply fill in the Divorce form online and send it to us via the reply button at the bottom of the page.

 

Step Two: We will get back to you quickly, with a request for any supporting documentation that is required

We will review the information you’ve provided and will get back to you to discuss the details. We will also make arrangements for you to provide us with any supporting documentation.

 

Step Three: We will prepare your Application for Divorce

We will draft your Application for Divorce for you.

 

Step Four: You review your draft Application for Divorce

You review your draft Application for Divorce and let us know whether you would like us to make any amendments.

 

Step Five: We arrange for your to sign your Application for Divorce and have it witnessed

We arrange for you to swear or affirm your Application for Divorce (because technically it is an affidavit).

 

Step Six: We file your Application for Divorce with the Family Court of Australia

We arrange for your Application for Divorce to be filed in the Family Court of Australia and, in cases where you are the sole applicant, for the documents to be served on your spouse.

 

Can we help if you don’t like filling in online forms or your divorce is a little more complicated than is usually the case?

Of course we can assist. If you don’t like filling in online forms or your divorce is a little more complicated, just give us a call on 1300 529 029, to make an appointment to discuss your divorce. Our experienced family law team will be happy to help.

 


 

Divorce FAQs

 
Divorce FAQ
 

Do I need to hire a lawyer to get divorced?

The divorce application process is fairly straightforward. You can either fill in the application on your own or with the assistance of a lawyer. The divorce application kit can be downloaded from the Family Law Courts website.

If you would like us to prepare your Application for Divorce, you can use our online form.

You may also feel you need the assistance of a lawyer for the more complex issues that surround divorce, such as:

A lawyer will be able to advise you of your entitlements, rights and responsibilities in each of these areas.

 

How much does a divorce cost?

The fee for filing an application for divorce in the Federal Circuit Court of Australia in currently $845. However, on 1 July 2015, this will increase to $1195.

The Family Law Courts fees are listed here.

 

How do you apply for a divorce in Australia?

In Australia, the key steps in getting a divorce are as follows:

 

Step One: Complete the Application for Divorce

You need to complete the Application for Divorce. You can either do this by yourself or with your lawyer.

There is an Application for Divorce Kit available from the Family Law Courts website, which includes step-by-step instructions on how to complete the application.

 

Step Two: Sign the Application

You need to swear or affirm and sign the Application for Divorce before a solicitor or justice of the peace.

 

Step Three: Photocopy the Application

You must make two photocopies of the completed and signed Application for Divorce and any supporting documents.

 

Step Four: File

At a family law registry, you must file:

  • the original and two copies of your Application for Divorce
  • a copy of your marriage certificate.

At this point, you will need to pay a fee.

 

Step Five: Receive a hearing date and documents

The court gives you a file number and a time and date for a hearing.

If you and your spouse lodge the divorce application jointly, the court will keep your original Application for Divorce, and give you and your spouse a sealed copy of the application and an information brochure, Marriage, Families and Separation.

If you apply on your own, the court will keep your original Application for Divorce, and give you two copies of the sealed application and the information brochure Marriage, Families and Separation.

 

Step Six: Serve the documents on your spouse

If you applied on your own, you must serve the following documents on your spouse:

  • a sealed copy of the Application for Divorce
  • the brochure entitled Marriage, Families and Separation
  • any other documents filed with the court (except the photocopy of your marriage certificate).

These documents must be served on your spouse:

  • at least 28 days before the hearing if your husband or wife is in Australia
  • at least 42 days before the hearing date if your husband or wife is overseas.

 

How do you serve documents on your spouse?

 

You can serve documents on your spouse in two ways:

  • by post
  • by hand.

 

Service by post

You should only attempt service by post if you are confident your spouse will return the Acknowledgement of Service (Divorce) to you. Without this, the court cannot be sure your spouse has received the documents. If you are unsure, you should arrange service by hand.

 

Service by hand

You cannot serve the documents on your spouse yourself.

You must arrange for a person over 18 years of age to serve the documents on your spouse. The server can be a family member, friend or professional process server.

 

Step Seven: Hearing

In cases where there is no child of the marriage who is aged under 18 years, and whether you have applied solely or jointly, you are not required to attend the court hearing.

If you have made a sole application and there is a child of the marriage aged under 18 years, you must attend the court hearing unless circumstances prevent you from doing so.

 

Step Eight: Outcome of hearing

If your divorce application is successful, the court will grant a divorce order (decree nisi).

The order becomes final one month and one day after it is made (decree absolute). This is the point where your marriage is legally dissolved.

 

How long does the divorce process take?

It will take at least four months to obtain a final divorce order (formally known as a divorce certificate). However, it will take longer if there are difficulties in serving your spouse. Therefore, you shouldn’t plan a remarriage without allowing enough time for the divorce to be finalised.

 

Is it possible to oppose a divorce application?

If you have been separated for more than 12 months, there are few opportunities to oppose a divorce application.

You can only do so if:

  • there has not been 12 months of separation as alleged in the application, or
  • the court does not have jurisdiction.

If you do not want the divorce granted, you must complete and file a Response to Divorce (where you need to set out the grounds on which you seek a dismissal) and appear in person on the hearing date.

 

Do you have to attend the divorce hearing?

This depends on the circumstances of your case.

 

Sole or joint application with no children under 18

If you have made a joint application with your spouse, you and your spouse are not required to attend the court hearing.

 

Joint application with children under 18

If you have made a joint application with your spouse, you and your spouse are not required to attend the court hearing (even if there is a child of the marriage under 18).

 

Sole application with children under 18

If you have made a sole application and there is a child of the marriage aged under 18 years, you (the applicant) are required to attend the court hearing unless circumstances prevent you from doing so.

 

In cases where there is no Response to Divorce

If there is no Response to Divorce, the other party is not required to attend, although they may do so if they wish.

 

In cases where there is a Response to Divorce but the respondent does not oppose the application

If a respondent has completed and filed a Response to Divorce, but does not oppose the application, they do not need to attend the hearing.

 

In cases where there is a Response to Divorce but the respondent does oppose the application

If a respondent has, in a Response to Divorce, opposed the application, they must appear in person on the hearing date.

 

Is the divorce process different for couples who have been married for less than two years?

Yes. If you have been married for less than two years and want to apply for a divorce, you must either:

  • attend counselling with a family counsellor or nominated counsellor to discuss the possibility of reconciliation with your spouse, or
  • if you have not attended counselling, seek the court’s permission to apply for a divorce.

The two years are calculated from the date of marriage to the date of applying to the court for a divorce. You and your spouse must also have been separated for at least 12 months before applying for a divorce.

 

If you married overseas, can you get a divorce in Australia?

You can apply for a divorce in Australia even if you were married overseas, as long as your or your spouse:

  • are an Australian citizen or resident
  • regard Australia as your permanent home.

You will need a copy of your marriage certificate. If your marriage certificate is not in English, you will need:

  • an English translation of the marriage certificate
  • an affidavit from the translator that:
    • states their qualifications to translate
    • attaches a copy of the marriage certificate
    • attaches the translated marriage certificate
    • states that the translation is an accurate translation of the marriage certificate
    • states that the attached copy of the marriage certificate is a true copy of the marriage certificate translated.

 

If you can’t find your spouse to serve a divorce application, what can you do?

If you have taken all reasonable steps to serve your divorce application on your spouse and you are unable to do so, you can apply to the court for:

  • substituted service, or
  • dispensation of service.
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