Divorce is a significant life event that can be both emotionally challenging and legally complex. While it signifies the formal end of a marriage, the process itself involves navigating a series of legal steps to ensure all requirements are met. For many, understanding these steps is crucial to making the transition as smooth as possible. We’ll walk you through some essentials of applying for divorce, covering everything from separation prerequisites to finalising your divorce.
The Role of Separation Before Divorce
Before you can officially file for divorce, a period of separation is required. Couples must be separated for at least 12 months before they can apply to the Federal Circuit and Family Court, with separation meaning living apart with the intention of ending the relationship, but couples can still be considered separated even if they live under the same roof.
When living under one roof during separation, it’s necessary to provide evidence to the court that the relationship has ended. This is typically done through affidavits from both the applicant and a supporting witness, detailing the arrangement and demonstrating that the separation is genuine. Clear communication about the end of the relationship is critical, as well as actions that reflect this decision.
Eligibility Criteria for Divorce
To apply for a divorce, you or your spouse must meet specific residency or citizenship requirements. At least one of the following must apply:
- Be an Australian citizen by birth, descent or grant
- Consider Australia your permanent home and intend to reside there indefinitely
- Have lived in Australia for at least 12 months prior to the divorce application
These criteria ensure that the court has jurisdiction over your divorce proceedings. If your marriage took place overseas, it is still recognised in Australia provided you meet these eligibility requirements. However, you’ll need a copy of your overseas marriage certificate to proceed.
Filing Your Application for Divorce
The divorce application process can be done individually (sole application) or jointly with your spouse. If filing a sole application and you have children under 18, you will need to attend a court hearing unless exceptional circumstances prevent it.
Your application must include:
- A copy of your marriage certificate
- Information about arrangements for any children under 18, such as living arrangements and financial support
- Details of any agreements or court orders already in place
- Proof of citizenship or residency
- For sole applications, affidavits from both the applicant and a supporting witness
Application fees apply, but fee reductions or exemptions may be available for those experiencing financial hardship.
Serving Divorce Documents
If you file a sole application, you are required to serve the divorce documents to your spouse. This ensures that they are aware of the proceedings and have the opportunity to respond. However, you cannot personally serve these documents. Instead, they can be sent via mail or delivered by a third party.
For spouses residing in Australia, documents must be served at least 28 days before the court hearing. If your spouse lives overseas, the timeframe extends to 42 days. In cases where the other party’s lawyer receives the documents, an acknowledgment of service must be signed and submitted as proof.
Finalising Your Divorce
Once your application is submitted, a hearing date will be scheduled. If the Registrar approves the application, your divorce becomes final one month and one day after the court’s decision. At this point, both parties are no longer legally married. It’s worth noting that you have 12 months after the divorce is finalised to file for property settlements or spousal maintenance. Missing this deadline may require special permission from the court to proceed.
Seeking Professional Guidance
Navigating the divorce process can be overwhelming, especially when dealing with the emotional aspects of separation. Seeking legal advice from a specialist in family law early can make a significant difference, providing clarity on your rights and obligations while helping you avoid unnecessary complications.