In Australia, we have a no fault system of Divorce. No fault means there is no need to establish fault of either party in order to obtain a Divorce Order. The only thing that you need to establish before you are eligible for a Divorce is that your relationship has broken down irretrievably. The Court can only find that the relationship has broken down irretrievably where the parties have been separated for 12 months. To understand more about what it means to be separated for 12 months take a look at Part 1 of The Divorce Process – One Step At A Time.
How do I start the divorce process?
If you have been separated for a period of 12 months, to obtain a divorce, you must complete an Application for Divorce. You will need to include a photocopy of your marriage certificate as proof of marriage. If you were married outside Australia and your marriage certificate is in a different language you to have it translated and file an affidavit for the translator.
When completing your application you will need to provide the date you and your spouse separated on a final basis, but you will not be required to provide evidence of your separation at this time. Evidence of your separation may be required if your spouse contests the date that you have provided. For more information on establishing a 12 month separation, please see Part 1 of the The Divorce Process – One Step At A Time.
If you have children under the age of 18, you will need to provide particulars of the arrangements that have been made for them. If there is a dispute in relation to the care arrangements or property matters such as spousal maintenance, your Divorce Application will not resolve these issues. They will need to be dealt with separately by way of an Initiating Application or Consent Orders. However, if you have children under 18 years of age, your divorce application will need to provide details of:
- Where the child(ren) will be living;
- The child(ren)’s care arrangements;
- Details of their schooling including; grade and progress, before and after school care
- Thier current health and any special needs;
- Details of the child(ren)’s contact with your spouse and if there is to be no contact, why?
- While this is not the time to settle financial disputes, you will also be required to indicate what financial support will be provided by the parent with whom the child(ren) are not living for their care and if there is no financial support provided, why?
What If My Spouse Refuses to Sign My Divorce Application?
If you and your spouse have reached the decision to make an Application for a Divorce you may wish to make a joint application. This is where you each complete a portion of the application accordingly and then you will each sign the application at the end.
However, in some circumstances and for various reasons, it may be the case that your spouse is reluctant and/or unwilling to make a joint application with you and refuses to sign a joint application. This will not prevent you from making your application. You may make a solo application and to do this you simply complete your section of the application leaving the part to be completed by your spouse empty and proceed in the ordinary manner.
What do I do With My Divorce Application?
You will need to file your Application together with any supporting material in the Federal Circuit Court of Australia. There is a filing fee that will need to be paid at the time your Application is filed. If you have a pension card or health care card or are experiencing hardship it may be possible to apply for a reduced filing fee.
If you are filing an Application for Divorce as a solo Application you will also need to arrange to have a copy of the Application served on your spouse to notify them of the Application and the hearing date. This is not necessary if you have made a joint Application.
Upon filing your application, you will be provided with a Court date for the hearing of your Divorce Application. If you do not have children under 18 years of age the Application can be heard by a Registrar and you are not required to attend Court. You will be notified of the Court’s decision and provided with a Copy of your Divorce Order once it is made.
If you do have children under 18 years of age you will usually be required to attend Court to satisfy the Court that adequate arrangements have been made for the care of your child(ren).
Once your Divorce Application has been heard you will need to wait one month and one day before your Divorce becomes final. This means that you will not be able to remarry until after this time.
If you have any further queries regarding the divorce process, contact us
Please call our client engagement team on (07) 3252 0011 to make an appointment with one of our Family Law Team members today.