Published April 2011
Getting a divorce will always be a traumatic experience, so it is a relief to know that the process is much simpler these days than it used to be. Today, the reasons for the breakdown of a marriage are no longer relevant. This is known as ‘no fault’ divorce. Since 1975, parties need not concern themselves with having to obtain evidence to support a divorce based on fault, such as adultery, battery, alcoholism and desertion. Apart from being undignified to the parties, it is more expensive, harmful to the children and unnecessarily drags on the emotional pain and turmoil of all involved.
So how do I get a divorce?
To commence divorce proceedings, you or your spouse, or both, must file an Application for Divorce in the Federal Magistrate’s Court, together with the relevant filing fee and any documents which support your case for Divorce.
How much is the filing fee?
The filing fee is currently $550. This fee will be reduced to $60 if you are the sole applicant for a divorce and you receive a pension.
What must I do to show the Court that my marriage has broken down?
You must be able to demonstrate that your marriage has irretrievably broken down. This is evidenced by the fact that, as a couple, you have separated and been living apart for at least 12 months. To grant the divorce, the Court must be satisfied that:
- there exists an intention to separate as husband and wife;
- there has been direct or indirect communication made of the intention to separate to the other party; and
- action has been taken by husband or wife to separate.
Separation is more than just physical. It occurs when one party leaves the relationship and ceases to cohabit with the other. It also includes the belief that the marriage has failed and there is no reasonable prospect of reconciliation.
Where the marriage took place less than 2 years before filing for divorce, the Court will require evidence of counselling. A certificate must be signed by an approved counsellor and lodged with the Divorce Application.
We have both been living in the family home because it has been too expensive to move out. Will this affect my ability to get a divorce?
It is possible to live separately and apart under the same roof. If this is the case, evidence from a witness must be provided to the Court verifying that the parties were separated (unless you have been in separate homes at least 12 months before filing your Application).
My spouse and I had a brief period of reconciliation but things did not work out. Does this mean I have to start the 12 months again?
Under the Family Law Act, parties are encouraged to reconcile. However, if reconciliation does not work out, and the period of re-cohabitation was less than 3 months, then the original date of separation still applies, with the separation period extended by the period of reconciliation.
Can my spouse and I lodge a joint Application?
Yes, and the procedures are much simpler if you do so. You would then both sign the Application and lodge it with the Court. Neither of you will need to attend the hearing, even if you have children under 18 years. There is also no need to prove that you have served your spouse with the Application.
Where can I get the forms?
The government has established a website Federal Circuit Court which contains information and the forms you will need. You can download a kit that sets out all steps you need to take, and you can lodge the Divorce Application on-line.
What happens once the Application is filed?
After the Application for Divorce is filed with a copy of your marriage certificate, a hearing date is allocated. If you are the sole applicant, your spouse must be served with a copy of the Application at least 28 days before the hearing and you have to file proof of service.
If the Court is satisfied at the hearing that the grounds for divorce have been established, an order called a ‘decree nisi for dissolution of marriage’ will be granted. At that stage, it is possible to rescind a decree nisi, which means that the parties do not have to go through with the divorce. Otherwise, a decree nisi becomes absolute after one month, at which time the divorce is final.
We have children under 18 years. What do we need to do?
If there are children under 18, the Court will not grant the divorce unless it is satisfied there are proper arrangements in place for their care. A ‘child of the marriage’ includes an ex-nuptial child (a child born before the parties were married) and an adopted child of either party.
Parents will need to include details in the Application such as housing, supervision, education, child support and maintenance, time each party spends with the child and health management. The Court may also require oral evidence to be given at the hearing if it has any further questions.
If there are children under 18, and you are the sole applicant, you will need to attend Court for the hearing of your divorce Application. If you and your former spouse have made a joint application, you do not need to attend Court for the hearing even if you have children under the age of 18 years.
What happens to the matrimonial property?
Property settlement is separate to the divorce process, and can be dealt with by the Court up to one year after the divorce is finalised. After this time, special leave is required. In most instances, parties do reach agreement on how matrimonial property is divided and formalise their arrangements in the form of consent orders, which are lodged with the Court for approval.
Where parties can’t reach agreement, an application is made to the Court for a decision. When deciding on property division, the Court will consider several factors including the direct, and indirect, financial and non-financial contributions to the family and property, each party’s earning capacity, spousal maintenance and child support payments.
For specific advice on divorce and related issues please contact Penmans Solicitors.