Divorcing our former spouse is an important part of moving on for many people
Whilst the Courts offer a free Do it yourself Divorce kit, we at Journey Family Lawyers can also act for you and manage the divorce process for you. It can be a complicated process and we will handle your divorce in the most expeditious manner possible. If you want to talk about the process, give us an obligation free call.
Divorce can be an expensive process and, in many cases, people can and do try to manage their own Divorces. We at Journey Family Lawyers have prepared a Guide to “Do it Yourself” Divorce to assist those trying to manage the process themselves. If you have any questions, feel free to use our 10 minute free telephone consultation service.
Of course, with other aspects such as property and children, you need to talk to a Lawyer to understand your rights; this is particularly so with property and children’s issues and we strongly recommend you get professional advice on these matters so you know where you stand. THERE ARE TIME LIMITS for instituting property proceedings after separation and divorce. ITs worth a visit to know where you stand in relation to divorce.
Steps to Take in Applying for Divorce
You must decide whether you will file a sole or joint Application for Divorce. If you and your spouse are amicable and able to co-operate, it may be easier to file a Joint Application.
Completing the Application
Your Application will be filed in the Federal Magistrates Court unless exceptional circumstances exist. Please contact us if you are unsure. you can now do this online.
Signing the Application
Your Application must be sworn or affirmed by you that all of the facts and details within the Application are true and correct to the best of your knowledge. This must be signed before an appropriate person able to witness documents. This can be done before a Lawyer, Justice of the Peace or other authorized person to witness an Affidavit.
Collating the Application
Along with the signed Application, you must attach all supporting documentation that may be required. This whole document must then be photocopied twice. You must also attach a copy of your Marriage Certificate.
Your Application, the along with the two copies need to be filed at your nearest Family Law Registry. This can be done by attending at the Registry in person or posting the documents to the Registry.
You must also remember to pay the appropriate filing fee and provide the Application for Reduction and payment of Divorce if applicable. This can be paid by cheque made payable to “Collector of Public Monies” or filing in person by cash or credit card.
Upon filing your documents the Court will keep the original and return two copies to you. On these copies you will find in the Court Use Only Section your court file number, along with the allocate date of your hearing.
The Court will also give you copies of the Family Court Brochure “Marriage, Families & Separation”, for both you and spouse.
Filing Fee Reduction
Applicants who are under a financial disability may apply for relief from paying all the Court filing fee.
There are two ways of applying for a filing fee reduction.
In one category (see below), you may fit into a particular category of people who are eligible for a fee reduction. The second way of obtaining a fee reduction is because of Financial Hardship.
A fee reduction was previously available for eligible applicants with a fee of $60. On 1 January 2013 the court increased the Reduced Fee to $265. The “Fee Exemption” form is now called ‘Reduction of Payment of Court Fees’ form.
1. Fee Reduction for Eligible Persons
The reduced fee may apply if:
- You hold a Health Care Card, Health Benefit Card, Pensioner Concession Card, Commonwealth Seniors Health Card or any other card issued by Centrelink or the Department of Veterans Affairs that entitles you to Commonwealth health concessions;
- You are receiving Legal Aid, Youth allowance or Austudy payment or Abstudy;
- You have received a “Notice of Exemption” from an approved Community Legal Centre;
- You are an inmate of a prison or otherwise legally detained in a public institution.
Only the Applicant has to satisfy one of these categories to qualify for a fee reduction however if you want to lodge a joint Application for Dissolution, both of you must satisfy one of the categories.
To access the Application for Reduction of Court Fees, follow this link.
When filing the Application for Dissolution, you will need to submit the completed Application for Reduction of Court Fees form to the Registry. You will also need to attach photocopies of documentary evidence of any of the above (such as your Health Care Card or Legal Aid letter) to support your claim. Photocopy both sides of the card or other document.
2. Fee reduction because of Financial Hardship
You may be eligible for a fee reduction if your income, day to day living expenses or liabilities and assets are at a level that payment of the full fee would cause financial hardship. To apply for this a different Financial Information form must be filled in.
To access the Guidelines for reduced fees (financial hardship), Click here.
If after reading the guide lines you think you are eligible, download the Application for Reduction of Court Fees (referred to above) and lodge when you are filing your Application for Divorce.
Service of Documents
There is no requirement for service if you applied by way of joint Application, each you and your former spouse should keep one (1) copy of the Application received back from the Court.
If you applied for Divorce by way of sole Application, there will be a requirement of service on your former spouse
In order to serve your former spouse, you must fulfill the requirements of service, being that you must serve the sealed copy of the Application for Divorce and the brochure “Marriage Families & Separation” on your spouse:
- At least twenty-eight (28) days before the date of your hearing, if your spouse is currently in Australia; or
- At least forty-two (42) days before the hearing if your spouse is out of Australia.
Attendance at the hearing
If you and your former spouse have no children currently under the age of eighteen (18) there is no requirement to attend at the hearing. This applies in both situations of sole and joint Application for Divorce. If your application was a Joint Application, even if there are children of the marriage under the age of eighteen (18) years, neither you, or your former spouse are required to attend the hearing.
You will be required to attend the hearing if you are the Applicant of a sole Application and you have a child or children under the age of eighteen (18) years. It may be possible for you to attend the Court Hearing by telephone. Click here for further information.
Outcome of your Divorce
If your Divorce Application is successful, the Court will grant what is known as a Divorce Order. The Divorce does not become finalised when granting the Divorce Order; rather one (1) month and one (1) day later unless otherwise shortened by the Court.
If you did not attend the hearing a copy of the Divorce Order will be sent to you in the post or available online if applicable. However you will not receive this until the Divorce has become finalised.
Additional Important Information
Journey Family Lawyers practice solely in Family Law and are very experienced in matters of Divorce and Separation. Journey Family Lawyers are more than happy to assist you with any of your Family Law or Separation queries.
Upon finalisation of your Divorce, there is a time limitation placed on you in order to apply to the Court to have your property matters finalised and financial ties with your former spouse severed. This time limit is one (1) year from the date the Divorce becomes finalised. After this time, it is still possible to apply to the Court for a property settlement, however it will only be granted in special circumstances.
If you and your former spouse have children under the age of eighteen (18) years, you should consider how you are going to continually co-parent these children post separation. Journey Family Lawyers are most than happy to assist you in formalising care arrangements for your children by way of agreement and lodgment with the Court or by way of Application for the Court to determine what is in your children’s best interests. There are many factors that the Courts take into account in determining what arrangements are in the children’s best interests, and this is something that we can go through with you.
Frequently Asked Questions
How do I apply for Divorce?
There are two (2) ways in which you can apply for a Divorce from your former spouse:
- You can apply for a Divorce by yourself, this is known as a sole application; or
- You and your spouse can apply together; this is known as a joint application.
When can I apply for a Divorce?
In Australia, in order to apply for a Divorce from your former partner the Court needs to be satisfied that you and your former partner have been separated for at least a twelve (12) month period.
The Court must also be satisfied that there is no reasonable likelihood of the two of you resuming your former married lives.
What if we are separated but still living together?
It is possible to continue to live with your former spouse and still be classed as separated. There are a number of factors that the Court will take into account when determining whether you and your former spouse are actually separated.
If you applied by way of sole application, you must file an Affidavit of yourself in order to put evidence before the Court that you and your partner, though still living under one roof, are in fact separated. It may also be beneficial to file a further Affidavit of a third party, such a family member or friend, that can give further evidence to the Court that you and your former spouse are separated. If you and your spouse are applying as a joint application, you must each file an Affidavit of evidence in this regard. The evidence in this Affidavit needs to be more than simply and you and your former spouse are living in separate bedrooms, there must have been a change in the relationship, whether gradual or sudden, demonstrating that you are separated and living separately, but in the same house.
I was married overseas, can I get Divorced in Australia?
In order to apply for divorce in Australia, you or your former spouse must fulfill one of the following criteria:
- You or your former spouse regard Australia as your homeland and intend to continue to live in Australia indefinitely; or
- You are an Australian Citizen by birth, descent or grant of Australian Citizenship; or
- You or your former spouse have ordinarily lived in Australia for the last twelve (12) months and continue to ordinarily live in Australia.
How much does it cost to get Divorced?
In order to apply for Divorce, there is a filing fee payable. You can find the current Family Law filing fees here.
A reduced fee may be payable in some circumstances, for example if you or your former spouse hold certain government concession cards, such as a Health Care Card or a Pensioner Concession Card, or if you are experiencing financial hardship. In order to apply for this reduction you will need to complete the required form.
The divorce form asks me for my address, but I don’t want my former spouse to know where I live, what do I do?
It is not a requirement for you to disclose your residential address on the Application for Divorce; however you may be required to provide more information to the Court in this regard if required. You will, however, have to provide an Address for Service. This may be your lawyer’s address.
If you are concerned about your safety and there is current pending or existing Orders in relation to family violence with your former spouse, this must be included in your Application as they may affect the Orders that the Court may make.
Do I have to attend Court to get Divorced?
Once your Application is filed with the Court, it will be listed for a Hearing.
If there are no children of the marriage who are currently under eighteen (18) years of age, neither you nor your former spouse will be required to attend the hearing.
If your Application with your former spouse is a joint application, even if there are children of the marriage under eighteen (18) years of age, neither you nor your former spouse would be required to attend the hearing. If there are children under eighteen (18) years of age, in order to grant a Divorce Application the Court must be satisfied upon with the breakdown of the marriage, that there are adequate care arrangements in place for these children.
If you make a sole Application to the Court and there are children of the marriage who are under the age of eighteen (18) years, you must attend at the hearing.
If you are required to attend the hearing in accordance with the above and do not do so, your Application for Divorce may be adjourned to a further hearing or dismissed altogether. In some circumstances it may be possible to attend the Court hearing by telephone.
I am getting re-married; do I need to be divorced?
In accordance with Australian Law you are not able to re-marry until our divorce from your previous spouse has been finalized. If your divorce was granted on the day of the hearing. In most cases the divorce will become finalized one (1) month and one (1) day later. If you intend to re-marry, you must comply with all requirements of the Marriage Act 1961, including that you must give the marriage celebrant a Notice of Intended Marriage at least one (1) month prior to the wedding. However a marriage celebrant will not accept a Notice of Intended Marriage until the divorce has become finalised from your previous spouse.
So I have got divorced, is there anything else that I need to think about with my former spouse?
An Application and grant of Divorce is not the only issue that you and your former partner will need to consider post separation. You will also need to consider issue:
- Regarding property and severing your financial ties; and
- If you have any children under the age of eighteen (18) years, finalizing their care arrangements.
It should be noted that neither of these two things are reliant on a divorce and can be finalised any time after separation.
I can’t find my Marriage Certificate, do I need it?
In applying for an Application for Divorce, you must provide the Court with a copy of your marriage certificate. If you are unable to locate your Marriage Certificate, and were married in Australia, the Registry of Births, Deaths & Marriages in the capital city of the State where you were married should be able to provide you with a certified copy of this.
If you are unable to get a copy of your Marriage Certificate, you will need to prepare an Affidavit and file it with the Court. This will be used as evidence of your marriage and why you are unable to get a copy of the Marriage Certificate.
If your Marriage Certificate is not in the English language, you will need to:
- Obtain an English translation of the marriage certificate;
- File an Affidavit of the translator who translated the original foreign language marriage certificate confirming:
- Their qualifications to translate the marriage certificate; and
- That the translation is accurate.
- Annexed to this Affidavit needs to be a copy of the original Marriage Certificate and a copy of the translated Marriage Certificate and the affidavit must state that the attached copy of the Marriage Certificate is a true and correct copy of the original Marriage Certificate.
- What if we are separated but got back together and now we have separated again. Can I still apply for a Divorce?
As stated previously, you must be separated from your former spouse for a minimum of twelve (12) months before applying for a Divorce. However you can recommence living together as husband and wife for a period of up to three (3) months post separation.
If the period you got back together was less than three (3) months, then the time before you got back together can be used in addition to the time after you separated again to add up to a total of twelve (12) months. If you and your former spouse got back together for a period of longer than three (3) months before you separated for the second time, you must be separated for a further twelve (12) months before applying for a Divorce.
Do I have to do any form of counselling before I can get Divorced?
If you and your former spouse have been married for a period of less than two (2) years, you must attend counselling with a family counsellor to discuss reconciliation. If you do not attend counselling you must seek permission from the Court to apply for a Divorce.
If you have been married for a period longer than two (2) years, there is no requirement for you and your former spouse to attend any form of counselling.
Journey Family Lawyers offer a free 10 minute chat over the telephone with one of our experienced lawyers. We also offer an Initial Consultation for the reduced rate of $143.00 (GST inclusive) which can cover both parenting and property and maintenance matters and let you know where you stand.
Journey Family Lawyers will gladly can assist you and act on your behalf at a reasonable fee.