Chapter 3: Divorce

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3.1 Ending the marriage
3.2 Legal process and procedures
3.3 Marriage certificates
3.4 Life after the divorce

3.1 Ending the marriage

How can I get a divorce?

To legally end a marriage you need to apply to the Federal Circuit Court for a divorce. Orders about property and children are not dealt with as part of a divorce application. You have to make separate applications for these orders if you need them.

To get a divorce, you need to prove to the Court that:

  • you have a valid marriage (e.g. by providing your marriage certificate or equivalent documentation); and
  • your marriage has broken down and there is no chance that you will get back together. This is called an irretrievable breakdown of your relationship; and
  • you have been separated for 12 months before you applied for divorce; and
  • you are an Australian citizen, a permanent resident or have been living in Australia for at least 12 months before applying for the divorce.

What does ‘separated’ mean?

You are considered to be separated from the day either you or your spouse decide the marriage is over and communicate this to the other person.

You can get back together for up to three months without re-starting the 12 month separation period. However, the time you spend back together does not count as part of the separation. For example: If you separate for two months, get back together for one month and then separate again, the Court will consider that you have been separated for two months not three months.

You may be able to get a divorce if you and your spouse have separated but still live in the same house for financial or other reasons. This is called separation under one roof. When you apply for a divorce you will need to prove that your marriage has ended and you and your spouse live separate lives. You do this by providing an affidavit from a friend or family member telling the Court about your separate lives. For example, you sleep in separate rooms, do not cook his dinner or do his laundry, do not go out as a family, or eat and entertain together. Children over 18 can make this affidavit.

What if I was married for less than two years?

If you have been married for less than 2 years, you need to consider reconciliation with the help of a counsellor before you can apply for a divorce. If your spouse is violent and you are afraid to see him, discuss this with the counsellor when you make an appointment. The counsellor should arrange separate appointments. If your spouse will not attend counselling, you may still get your divorce by applying for permission (called special leave) from the Court. Unless you urgently need a divorce, it is easier to wait for two years from the date of marriage to apply for your divorce.

3.2 Legal process and procedures

What are the steps involved in getting a divorce?

Doing your own divorce application is not too difficult and there are many ways to find help with it if you have any problems or questions.

The Family Law Courts divorce kit provides a step-by-step guide to doing your own divorce. You will find this kit at the Family Law Courts, Local Courts and on the Family Law Courts website. See Chapter 9: Referrals and Resources.

Legal Aid NSW holds divorce classes to help people fill out the divorce application form and explain the process of getting a divorce.

A summary of the steps involved in getting a divorce is set out below:

1  Complete an application for divorce form

This form can be filled out by hand. You can apply on your own or together with your spouse (this is known as a joint application). The application form has to be signed and witnessed by a solicitor or Justice of the Peace.

2  File your application

File your application by taking or sending the application and any affidavits (the originals and two copies) and a photocopy of your marriage certificate to the Family Law Courts. You can also file your divorce electronically. See the Family Law Courts website for information about eFiling. There is a filing fee for Divorce Applications. See Chapter 9: Family Law Fees for more details. A reduced fee may apply in some circumstances.

When you file your application you will be given a hearing date for your case. The Court will keep the original documents and give you back the two copies with the Court’s original stamp (called a court seal) and the hearing date stamped on them (called sealed copies). You will also get two copies of the brochure Marriages, Families and Separation.

One of the sealed copies of the application and the brochure is for you to keep and the other one is to be served on (formally given to) your spouse.

3  Serve the application on your spouse

You will need to serve (formally give) the following documents on your spouse:

  • a sealed copy of the application for divorce;
  • a copy of the Marriage, Families and Separation brochure; and
  • any other documents filed with the Court, except the copy of your marriage certificate.

You can serve the documents on your spouse in two ways:

  • service by post

If you are confident that your spouse will sign and return an Acknowledgement of Service form, you can try service by post. Without a signed Acknowledgement of Service form, the Court cannot be sure that your spouse received the documents.

  • service in person

You cannot serve the documents on your spouse yourself. You can get a friend or relative aged over 18 to deliver the documents, or use a professional process server.

Your spouse must be served at least 28 days before the hearing date if he is in Australia or 42 days before the hearing date if he is overseas.

If you have made a joint application you do not have to serve your spouse with any documents.

4  File the service documents

You must prove to the Court that your spouse has been served by filing:

  • an Affidavit of Service (made by the person who served your spouse with the divorce); and
  • the Acknowledgement of Service form signed by your spouse.

This proves to the Court that your spouse received a copy of your application and the date he received it.

5  The court hearing

If there are no children aged under 18, then you do not have to go to court.

If you are asking for the divorce and you have children aged under 18, you need to go to court for the hearing. When you arrive, there will be a list of cases displayed in the court building and a court attendant to direct you to the right courtroom. A court officer will call your name when the Court is ready for your case. Tell the Court you are the applicant and that you want the Court to grant your application for divorce. If you have a solicitor, she or he will talk for you.

6  The Court makes its decision

The Court can:

  • grant your divorce;
  • grant your divorce but refuse to make it final until proper arrangements are made about your children;
  • adjourn your case –  this means the hearing is postponed to another day so you can give the Court better evidence that your spouse was served or for another reason; or
  • refuse or dismiss your application.

If the Court is satisfied there are grounds for divorce and proper arrangements have been made for your children, it will make a divorce order. The divorce order usually becomes final one calendar month later and is called a final divorce order. The Court can decide to shorten the time after which the divorce order becomes final. The Court will send you a sealed (stamped) copy of the final divorce order, which is proof that you are divorced.

What if I cannot find my spouse?

The Court will require proof that your spouse has been served with (formally given) the divorce application. If it is impossible to send a copy of the divorce application to your spouse, the Court can agree to dispense with service (i.e. the Court can say that you do not need to serve your spouse). Before doing this, the Court will need to see proof of the ways you have tried to find him by, for example, checking with his family or friends or his last place of work.

If you know where one of your spouse’s relatives is, the Court can order that you serve that person instead of him. This is called substituted service.

What if my spouse is overseas?

You can serve your spouse by post or in person with the assistance of a process server. The Court can order some other type of service, for example, substituted service (service on someone else, such as a relative).

If I was married overseas, can I still apply for a divorce in Australia?

If you were married overseas you can apply for a divorce in Australia. The test for a divorce is the same as the test applied to marriages made within Australia. That is, you can apply for a divorce as long as you can show the Court that you have a valid marriage, that your marriage has irretrievably broken down, you have been separated for 12 months and that you or your spouse is an Australian citizen, a permanent resident or have been living in Australia for at least 12 months before applying for a divorce.

You will need to provide evidence of your overseas marriage by way of a certificate or official document from the registry of marriages in the country where you got married. If you can not produce an official document proving your marriage, you can file an affidavit explaining your marriage and the reason why you can’t produce an official document.

What if I do not want to divorce my spouse?

You cannot legally stop a person applying for a divorce as long as the requirements for a divorce have been met. See section 3.1 above for the legal requirements.

However, the law provides for fair property settlement, maintenance and child support so you should get advice about these matters if they have not already been sorted out.

What if my spouse files for divorce and makes untruthful statements in his application?

You can file a Response, putting your version of events in a statement. If you file a Response you must then go to court for the hearing. It is best to have the record set straight, as the divorce application will remain in the court file.

How much will it cost me to get a divorce?

When you apply for a divorce you need to pay for:

  • court filing fee
  • a certified copy of your marriage certificate if you do not have the original
  • translation of marriage certificate (if not in English – see What if I need my marriage certificate translated? in section 3.3 below)
  • a process server to serve your divorce application on your spouse – on average costs between $70-$120 (depending on location of spouse)
  • your lawyer’s fees if you have used a lawyer to help with your divorce application.

See Chapter 9: Family Law Fees for current fees.

If you and your spouse have a child under 18 years old, you will also need to attend a hearing at court. This could mean taking a day off work.

If your spouse starts the divorce proceedings then you will not have to pay for the divorce.

Lawyers’ costs are set by the Family Law Court Rules, and change each year. Your lawyer can choose to charge more than the set amount as long as they tell you up front, and you sign a costs agreement.

What if I need to apply for a divorce but can’t afford the court filing fee?

You may be eligible for a reduced filing fee for divorce applications if you are:

  • entitled to Commonwealth health concessions (see below);
  • receiving Legal Aid, Youth Allowance, Austudy payments or Abstudy;
  • under 18 years old; and/or
  • an inmate of a prison or detained by law in a public institution.

Reduced filing fees for divorce are granted to primary cardholders (but not dependants of the primary cardholder) of a Health Care Card, Health Benefit Card, Pensioner Concession Card, Commonwealth Seniors Health Card, or any other card issued by Centrelink or the Department of Veterans’ Affairs that entitles you to Commonwealth health concessions.

If you do not fall within the categories above but cannot afford court fees, you can still apply for a reduced fee by filing a Reduction of Fees (Financial Hardship) application. The court will consider whether a reduced fee is appropriate, based on your personal circumstances.

3.3 Marriage certificates

What if I can’t find my marriage certificate?

If you do not have your marriage certificate, you can order a certified copy from the Registry of Births, Deaths & Marriages. There is a standard fee for a marriage certificate. A certificate can be provided urgently for an extra charge. See Chapter 9: Family Law Fees for current fees or contact the Registry of Births, Deaths and Marriages.

If your foreign marriage certificate is not available, you must file an affidavit with your divorce application explaining why the certificate is not available.

What if I need my marriage certificate translated?

If your marriage certificate is not in English, you will need to have your marriage certificate translated into English by a certified translator. The translated version of your marriage certificate must be filed at the Court, with an affidavit by the translator stating they are competent to make official translations.

You can have your marriage certificate translated into English at the NSW Community Relations Commission. A fee is usually charged for this service and it varies depending on whether you want the document in 14 days, 7 days or 24 hours.

3.4 Life after the divorce

When can I get married again?

One month after your divorce hearing, your divorce order becomes final. Once your divorce order becomes final, your marriage is over and you can legally remarry. The Court can shorten the one-month period.

What about my will?

It is a good idea to make a new will when something big changes in your life like marriage, divorce or the birth of a first child. When you get married, your will is automatically revoked unless that will was stated to be made in contemplation of the marriage. A divorce does not automatically revoke a will. However, if you have a will leaving anything to your spouse, when your divorce becomes final, that gift to your former spouse will be revoked unless he can prove that it was not your intention to revoke his gift.

Most couples own their family home as joint tenants (each person owns 100% of the property) rather than tenants in common (each person owns a share e.g. 50% of the property). If you own property as joint tenants with your spouse, that property will go directly to your spouse as the surviving tenant and will not become part of your estate when you die (the reverse is also true). Marriage or divorce or a will does not have any effect on a joint tenancy. If you do not want your share of the property to go to your spouse should something happen to you, it is important to pursue a property settlement as soon as possible. You may also want to get legal advice on ending the joint tenancy and then owning the property as tenants in common.

When can I get a property settlement?

You can make a property settlement any time after you separate. Once a divorce becomes final, you must apply to court within 12 months if you need a property settlement or spouse maintenance. Generally, it is better to do a property settlement first or at the same time as applying for a divorce. If your spouse applies for divorce, seek legal advice to get a property settlement if you have not already done so.

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