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Published: 10 July 2018
Author: Melanie Wyatt
Divorce is a subject that can be difficult to discuss, but is sometimes necessary to protect the emotional or even physical well-being of the parties involved. In this article, I explain briefly and simply what needs to be done in order to obtain a divorce.
When parties separate, one party will often want a “divorce” if they have been legally married. A divorce is separate from a property settlement. A divorce is normally the last step if parties are proceeding with a property settlement, as once the divorce is granted, the parties only have one year to finalise their property settlement, without seeking leave form the Court.
In Australia, there is a no-fault principle in relation to divorce which means that the Court does not consider which party was at fault in the breakdown of the marriage. The application can be filed jointly or separately. At least one party must be born in Australia or is an Australian citizen or has lived in Australia for the last twelve months. If the marriage was overseas, then the marriage certificate will need to be translated into English.
A party can make an application for divorce once they have been separated from their spouse after one year and one day. If the parties have remained living under one roof after separation, then they will need to provide proof that they have lived separately during that period. This can be done by filing an Affidavit (which is your written evidence) from the party making the application, that the parties have lived separately by keeping finances separate and paying own expenses, completing their own household duties, separate sleeping areas and how the public (including family members and friends) perceives their separation.
It may be appropriate for an additional witness to provide an Affidavit confirming how the parties live separately under the one roof, such as a close family member or friend that has continued to spend time with both parties.
The party making the application (or joint application) will need to confirm that the marriage has broken down irretrievably, meaning there is no likelihood that the parties get back together in the future.
If there are children under the age of 18 years of the marriage (any child treated by the parties as a child of the family immediately prior to the separation) then parties must satisfy that appropriate arrangements have been made for the care, welfare, and development of the children. The divorce proceedings are not to determine the care arrangements for the children. The application for divorce is to simply grant a divorce to allow both parties to remarry if they wish to remarry.
If the parties were married less than two years then they must attend upon family counselling. The two years is calculated from the date of marriage until the application for divorce. The counsellor must sign a certificate confirming that the parties attempting counselling or that one party was unwilling to attend. This certificate must be attached to the application for divorce. If the parties do not attend counselling, then they will need to file an Affidavit explaining why they did not attend.
Once the Application has been filed with the Court, it will be stamped by the Court and confirm the hearing date. If the application was made by only one party, then they will need to arrange service upon the other party. Service can occur by post, by hand (this cannot be done by the person making the application, but by a friend, family member or professional process server) or through the other parties’ solicitor.
The party being served with the application will need to be provided with an Affidavit of service and acknowledgment of service. Those documents need to be signed by the party being served and return to the party filing the Application. The party filing the application will need to file those service documents with the Court (along with an Affidavit of proving signature if the acknowledgment of service was signed). If the application was made jointly then there is no need to file service documents.
If the application was made by one party and there are children under the age of 18 years, then the person making the application will need to attend Court. If there are no children under the age of 18 years, then the matter can be dealt with administratively by the Court and there is no need to attend Court. If the application was made jointly then the parties do not need to attend Court, unless they wish to attend.
Although it is helpful to know the basics of what is involved in divorce proceedings, every case is unique and we encourage you to seek a free first consultation with one of our dedicated family and relationship lawyers.
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