Going through a divorce with legal requirements and procedures can be a challenging and emotional process for both parties. Therefore, by understanding how to apply a divorce in Australia is an important step in this journey.
Eligibility for divorce in Australia
- The residency: Divorce proceedings can be initiated under this law if, at the time the divorce application is submitted to a court, one of the spouses meets one of the following conditions:
- He/she is an Australian citizen.
- He/she have their permanent home in Australia.
- He/she have been living in Australia for at least one year continuously leading up to that date.[1]
- The separation: the parties must be living separately and apart for at least 12 months. This does not mean that you must live in a separate house, but you should not be living as a couple or continue sharing a married life during this 12-month period.[2]
The Application Process
- To initiate the divorce process, you will need to obtain and complete the “Application for Divorce” (Form 3).[3]
- You are required to provide your spouse, the Respondent with sealed copies of several documents, which include the Application for Divorce, any affidavits that have been filed, a Marriage, Families, and Separation brochure <https://www.familycourt.wa.gov.au/_files/Information_Kits_Brochures/Brochure_Marriage_Families_Separation.pdf> , and an Acknowledgment of Service (Divorce) form.[4]
Once you’ve completed the divorce application, you must serve a copy by a process server, a solicitor or by the postal system to the Respondent. This is a critical step and must be done correctly.[5]
If the Respondent is living in Australia, they should receive the documents at least 28 days before the court hearing. However, if the Respondent is not living in Australia, the documents must be served on them at least 42 days before the hearing.[6]
Attending the Court Hearing
Whether or not your physical presence is required at this hearing depends on several factors:
- If your application is sole or joint with no children involved, you may not need to attend the hearing.[7]
- If your application is sole and there are children under 18, attendance is mandatory.[8]
If no attendance is needed, the divorce order can be obtained by a registrar in chambers without appearing in person. However, if attendance is required, you have an option to send a legal representative on behalf of you.[9]
If the court grants the divorce, you will receive a Divorce Order which will only be effective one month and one day after the hearing. This waiting period allows for any appeals or objections to be addressed.
The important next steps
After the divorce becomes effective, there will be a 12-month time limit to file interim or final property and/or spousal maintenance applications. However, if you need to file outside this prescribed period, you can request the court’s permission.[10]
Conclusion
It is advisable to consult with a family lawyer for your divorce application especially if your situation is complex involving children or property disputes. By understanding the process and following the legal requirements is important to give you the confidence and clear guidance for a smooth divorce procedure.
[1] Family Law Act 1975, s39(3)
[2] FLA 1975, s48
[3] http://www.comcourts.gov.au/
[4] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 2.28
[5] https://www.fcfcoa.gov.au/fl/hdi/apply-for-divorce
[6] https://www.mediatenow.com.au/uploads/1/5/5/7/15579660/divorce_kit__do_it_yourself_kit_.pdf
[7] FLA 1975, s51
[8] Ibid.
[9] Ibid.
[10] FLA 1975, s44(3)