Divorce

What is meant by getting a divorce?

In legal terms, a divorce means only the physical ending of the marriage. Nothing else. Other matters, involving children and parenting orders and financial settlements, are termed "ancillary relief". Those issues necessitate legal advice, at least on a preliminary level, as there are many misconceptions in the community about what are the normal arrangements with children and financial arrangements. The divorce is usually the last step taken between separated parties, after a year of separation, and after child welfare and financial matters have been resolved. At that stage, there is no need to obtain further advice about obtaining the divorce itself. You should be aware that you do not have to apply for a divorce to seek a settlement of property, maintenance, child support, restraining orders, or orders regarding the children.

Once a divorce has been granted, a divorce order (previously known as a "decree nisi") is pronounced. This will become final a month later. You cannot remarry during that time. The formal divorce certificate will be posted to the address you nominated in your divorce application.

Can I do it myself and do I need legal advice?

Yes, you can do it yourself. Depending on your circumstances, you may not need legal advice. The Federal Magistrates Court provides an interactive Divorce Application on line, with detailed instructions. Clicking on Your Application gives step-by-step guide to completing the Application. The application can either be a joint husband and wife application, or you can make an application on your own. You can print out the form, ready to have lodged at the Court.

If you prefer, you can download the Divorce Application Kit. There are two kits, one for a divorce where there are no children under 18, and one for when there are no children. Refer to the Divorce Chapter 5 of the Family Court Practice Manual by Peter Szabo. It is available fully on line in html format at no cost. There are examples of how to complete the form, and a completed example which can be downloaded in PDF format.

You are however, very strongly urged to get advice on other matters such as children and parenting orders and financial settlements. For example, if you leave the home without the children and want to seek orders that they live with you, the person remaining in the home will retain interim order that the children live with them. This is on the basis that you left the home, conceding that the children were better off staying with the other parent. As a final hearing can be delayed for over a year, this could result in a permanent order to that effect. This would be different if you were forced from the home, for example because of violence. The message however, is very clear. You really should obtain legal advice before you actually separate.

Can we obtain a joint divorce?

Yes. If both parties are cooperative, this is the best and simplest way to obtain a divorce. There is only one document to complete and no need to serve papers on the other party, as both parties sign the application. You can use the Divorce Application, **available online at the Federal Magistrates Court's website http://www.fmc.gov.au/forms.

What will it cost?

If you prepare the documents yourself there are no legal fees. As of 1 July 2007, there is a government imposed fee of $432.00 (as at October 2008) for a Divorce application, payable on filing the application. If the application is filed in the Federal Magistrates Court pensioners are exempt from such fees. The fee can be waived in the case of hardship. The Exemption and Waiver forms and details can be obtained from the Federal Magistrates' Court or Family Court Sites. You may be able to negotiate reduced fees with your lawyer, on the basis that some of the work is undertaken by you. For example, you can usually safely attend court for the hearing without a lawyer. For further information on costs and the method of charging, refer to the summary of the Family Court's "Costs of Family Law Proceedings" and the Federal Magistrates Court Costs of proceedings.

The Family Court has filing fees in respect of Applications for Final Orders. There are various other fees. See "Fees payable in the Family Court" on the Family Law Court's web page. That link gives a full a comparison of the fees in both Courts. Almost all divorces are heard in the Federal Magistrates Court.

What are the grounds for a divorce in Australia?

There is one ground only in Australia - namely, irretrievable breakdown. This is evidenced by a 12 month separation period. This usually means the establishment of two separate households. Fault (such as adultery, cruelty, etc) are not relevant to this issue. This is set out in Section 48 of the Family Law Act.

What if I was married overseas?

Overseas marriages (and divorces) are recognized here. If you satisfy the ground for divorce here (irretrievable breakdown evidenced by 12 months separation) and the jurisdictional requirements, you can apply for a divorce here.

The other party does not have to be in Australia. However, some complications may arise. The marriage certificate will have to be translated if it is not in English. See the relevant section under Marriage Certificates in the Practice Manual. There may also be problems serving documents on the other party overseas. In those cases, you will probably need legal advice.

Can we be separated while still living in the same house?

Yes. However, this is more difficult to establish to a court, and will usually mean obtaining legal advice on what additional documents are needed. Setting up separate bedrooms, and not doing any domestic chores for each other is a start. You will need witnesses who can confirm that the separation did in fact occur, and was not just "made up" to try to shorten the separation period.

Can I shorten the time of the separation?

No. There must be 12 full months of separation. The divorce application can only be sworn the day after the anniversary of that event. In some instances, you can shorten the time for the pronouncing of a decree absolute. This period is a month in normal circumstances. If this is of concern to you, you should obtain legal advice on what to do.

How do I record the separation?

There is no legal requirement in this regard. As long as the other party does not contest the date nominated in the divorce application, the divorce will go ahead (provided all of the other requirements are satisfied).

What if we reconcile for a while?

You can attempt a reconciliation for up to three months without having to "start again". If the period is longer than that, or there are several significant attempts at reconciliation, you may have to start the 12 month period again. You should seek legal advice on this point

What documents are required for the divorce?

You will need a photocopy of the marriage certificate. If it is not in English, it will have to be translated. You may need your Naturalisation Certificate as proof of Nationality, depending on what ground you use to satisfy the jurisdiction requirements. See the Summary of documents you need to complete and file in the section "Filing -Step by Step" contained in Chapter 5 of the Family Court Practice Manual. The Divorce Kits also give details of what documents are needed.

Do I need to go to court and what do I do if I have to go?

If there are no children of either your spouse or you under 18, then you do not need to go. The divorce application gives you the option of not attending. If you have any children under 18, either you or your lawyer must attend. It is better if you go to court to make sure the application is granted. There may be information the court wants to clarify. If you are not there, the divorce may be delayed for some weeks or even months. You should note that the definition of "child" for the purposes of the divorce document means any child who is a member of the household at the time of separation. This includes a step child, or a foster child, and not only the children of both parties.

If you go to court yourself, refer to the information prepared by the Family Court entitled "What to do in Court" designed to assist people who are applying for a divorce without a solicitor.

What if I cannot find the other party?

You can still obtain a divorce. You need to dispense with service of the divorce documents. You will probably need legal advice. If you know where the other person is, but they are being difficult by evading service, you may also obtain what is called substituted service.

Can a divorce be opposed?

Because there is only one basis for a divorce (ie - irretrievable breakdown), and how it is evidenced, contested divorces are rare. Unless the separation is less than 12 months or there is a real prospect of a reconciliation, you cannot contest a divorce. You should obtain legal advice on these matters. Sometimes if the court is not satisfied that proper child support is being paid or that the children are not seeing both parents, a divorce can be delayed.

How long will it take?

It will take about 2 months from the time you file your application for it to be heard by the court. If the other party is overseas, the time is a few weeks longer. The hearing itself lasts only a few minutes and is usually heard by a Federal Court Magistrate. As the Court is open to the public, you can observe how other cases are dealt with before your case. Friends can come with you into court. Although the court is "open", you cannot publicise what happens in the court in a way which will identify the parties.

How soon can I remarry after the divorce?

A month after the court hearing, which is when a formal "Decree Certifcate" is granted. You will receive what is called a Decree Absolute from the court. You need to produce this document in the event you wish to remarry. You can sometimes shorten the month. For example, you may want to remarry as your fiance is expecting a baby. Sometimes the Decree Absolute can be shortened to 7 days or even less in appropriate cases. You will probably need legal assistance if you want to shorten the time from the Decree Nisi to the Decree Absolute.

What if I have lost my divorce order (formerly known as a decree absolute)?

You can obtain one from the Family Court Registry. Details on how to obtain it are set out on that site. There will be a fee payable, depending on the work needed to retrieve it.

How do I get legal advice?

You can contact Moores Legal. If we cannot help, then we can refer you to someone who can. Alternatively, we refer you to the Family Court listing of Legal Aid Commissions and Law Societies in Australia provided via the Family Court Internet page. They can provide you with a list of accredited specialist Family Lawyers.