Applying for a Divorce is often the least contentious issue after separation of a married couple. The process is the formal means of dissolving a marriage.
Once the parties to a marriage have been separated for a period of one year or more (having been married for over two years), an Application for Divorce can be made in the Federal Circuit Court by one or both of the parties under the Family Law Act 1975 (Cth).
Engaging a Solicitor to see you through the Application process is not mandatory, but many people choose to engage legal representation to ensure all documents are completed and filed correctly and in a timely fashion.
The simplest Divorce can occur under the following circumstances:-
- If the parties can agree on a date of separation;
- If the parties regard the marriage as over at the date of separation;
- If the parties did not live together after separation; and
- If the parties have been married for over two years.
In the above circumstances, filing an Application for Divorce in the Federal Circuit Court of Australia will result in the provision of a Hearing date, usually six or more weeks after filing. If the parties to the Application do not have children, then neither party is required to attend the Hearing. If there are children of the marriage under the age of eighteen, then the parties must attend the Hearing on the day. If a party is unable to travel to the Court, an Application for an appearance via telephone link can be made to accommodate the presence of a party, if required. After the Divorce Application has been heard in the Court, a Divorce is granted and will take effect one month and one day from the Hearing date.
Factors that complicate a Divorce Application include:-
- Whether the other party will accept or acknowledge service of the Application (In circumstances where the other party refuses to accept or acknowledge service of the Divorce Application a process server is engaged to effect service. If service still cannot be performed, an Application for Dispensation of Service can be made to the Court);
- If the parties are unable to agree on a date of separation (Additional Affidavits must be filed providing evidence of separation if the date is in dispute) ;
- If the parties have been married for less than two years (in this case the parties are required to undertake Marriage Counselling before a Divorce can be granted. A Counselling Certificate is then required if the parties wish to continue with the Divorce process); and
- If the parties have lived under the one roof together since separation (then Affidavits must be filed providing evidence that is required to attest to the separation of the parties).
Any circumstances that serve to complicate or delay the Application process (such as additional Affidavits, location services or attempts at service) can increase legal fees. In additional to our legal costs, which depend on the complexity of each case, the Court requires a filing fee, currently $865.00, to attend to the Application for Divorce. Commonwealth Concession Card holders are able to file an Application for a reduced filing fee, currently $290.00.
When you first see your Solicitor, take with you the following documents:-
- Your Certificate of Marriage; and
- Any Commonwealth Concession or Pensioner’s Card.
Perhaps the most important aspect of an Application for Divorce is the implications it has on obtaining further property settlement. Once a Divorce is granted and takes effect, the parties have one year to file property proceedings in the Court. Once this year has passed, the parties must apply for an extension of time should they wish to file proceedings, which Application may or may not be granted.
Another important aspect is that prior to divorce, your estranged spouse may contest your Will on your death.
During your initial consultation, Wonderley & Hall can advise you on the requirements of the Divorce process, draft your Application and advise you of any issues that might arise as a result of your circumstances. Contact our family law team or one of our family lawyers directly for further advice and information.