Divorce

In Victoria, the Family Law Act 1975, section 39 sets out, a matrimonial cause may be instituted in the Federal Circuit and Family Court of Australia.

Australia has a “no fault” system, which means the only bases for divorce is that there has been an ‘irretrievable breakdown’ of the marriage, this means that there’s no possibility of reconciling.

What needs to be satisfied?

There are a few eligibility requirements in order to be granted a divorce by a court such as:

1. Marriage

First the marriage must be legally recognised in Australia, such as being of the right age of which is 18 years of age. If they are between the age of 16 and 18, there must be proof of obtaining permission from court. A marriage certificate proving the marriage exists, is also documents needed for a divorce application.

2. Association to Australia

In order for you to be able to apply for a divorce application, there must be a connection between the parties and Australia, this can be proven through a citizenship from one or both parties. It would be satisfactory if one of the parties have lived in Australia the last year and plan to make Australian their home.

3. Separation

Both parties must have been separated for at least 12 months, whether they choose to live in different home, they have the option of being separated but residing under the same roof. They may continue to live together but have separated due to its convenience, financial reasons or continue to provide uninterrupted care, for their children.

There are other elements that needs to be satisfied for a divorce application, such as appropriate arrangements for the children, if any, have been made. And the other party has been served with a copy of the application at least 28 days prior to the divorce hearing.

If you’ve been married for less than two years, you will need to file a counselling certificate. This is to evaluate whether there is no possibility of reconciliation, if they choose to continue with the process this document is needed to show they attended.

If this is a domestic violence situation, you will not need a counselling certificate of you have been married for less than two years, and wish to divorce, the court will waive that requirement.

The breakdown of the relationship

After both parties to the marriage, have separated for the given period, one or both spouses can file an application for divorce. A person may apply for divorce themselves which is a sole application, or with their spouse as a joint application.

Applications for a divorce should be filed online using the Commonwealth Courts Portal online form, you may prepare your own divorce application or ask a lawyer to do it for you.  You must fill out the application as instructed, and not leave anything out.

If it is a sole application for divorce, the applicant must serve the papers to the respondent, within the timeframe before the court hearing, if it is a joint application, one of the applicants provide the other applicant with a copy to review and sign before it is submitted online.

If one party chooses to oppose the divorce, they can complete, file, and serve a response to divorce and attend the divorce hearing. This can only be done of both parties have not satisfied the requirements of the application, such as being separated for 12 months or the court not having jurisdiction to grant the divorce.

Minor Children

In the divorce application, there is a section that is relevant for children, if any, of the marriage under the age of 18. Any child treated as family, adopted, or born of either spouse before, during or after the separation is eligible for this requirement. It must provide information about the child’s housing, care, schooling, grades, heath and parental contact and financial support.

Service and Notice

Once that application is filed, a hearing date will be set by court usually eight weeks from filing. Once this is done, the courts will personally send a sealed copy, to the respondent, by someone who is over the age of 16, at least 28 days before the divorce hearing.

That individual is obligated to swear an affidavit to the consequence that the application was given to the defendant, when and what was said. This is due to the fact the court have be satisfied the respondent is aware of the application and the hearing date.

Once this is completed, the court will grant a decree nisi which is stage 1 divorce. Then stage 2 is the decree becoming absolute. This decree will become absolute 1 month and 1 day after the decree nisi was granted. This is the common procedure but may be affected by other means.

Unable to locate spouse?

The application for divorce requires your spouse’s address, if you can’t locate your spouse and if you have taken all reasonable methods of locating them, you may apply for an order to dispense with service or for substituted service. The court will then order that your spouse is aware of the divorce hearing by virtue of your efforts, or that your spouse will be deemed aware of the application due to the steps you conducted to serve it.

Once all these requirements are satisfied, your divorce will become absolute.