If you are thinking of separating or are currently separated from your spouse, there are many factors you will need to consider. Below, we have compiled all the necessary information you should be aware of before applying, as well as the steps you should take when filing for a divorce.
BEFORE FILING FOR THE DIVORCE
If you have separated from your spouse, you should inform your family or a close friend. This may assist in recalling the date you and your former spouse separated, which will later determine whether you are eligible to apply for a divorce. You may also need to notify government agencies of your separation, particularly Centrelink or Medicare, as this may affect your entitlements. For more information in relation to Services Australia, visit their website here.
In relation to your financial relationship with your former spouse, you may wish to consider closing any joint bank accounts or redirecting your income to an account in your sole name so neither party can expend funds without the other parties’ consent.
ARE YOU ELIGIBLE FOR APPLYING FOR A DIVORCE?
Under section 48(1) of the Family Law Act 1975 (Cth), the marriage must have ‘broken down irretrievably’. This means that you and your spouse must have been separated, and lived separately continuously, for at least 12 months. There must also be no likelihood of reconciliation. If you do reconcile with your partner for a period of more than three months, and then separate again, the period of separation will commence from the most recent date; you cannot combine the two periods of separation together. If it is less than three months, you can combine the periods of separation together.
SHORT MARRIAGES:LESS THAN TWO YEARS
If you and your former spouse were married for less than two years, then you will be required to attend counselling and obtain a counselling certificate. To do this, you should contact Family Relationship Advice Online, here.
DIVORCE APPLICATION
An application for divorce can be made either by yourself (sole application) or with your former spouse (joint application). You are required to fulfill different obligations in either instance:
- Sole application: You are the only person required to sign the application. You will be required to serve the application on your former spouse by post or by hand. For more in-depth information on service, look here. If there are children of your marriage under the age of 18, you will be required to attend Court for a Divorce Hearing.
- Joint application: You or your former spouse can complete the application. Either party then provides the application to the other party for their review and signature; both parties are required to sign. If you are both happy with the application’s contents, then you can sign the application while being witnessed by a lawyer or Justice of the Peace. You are not required to attend Court unless you choose to do so.
Once the application is finalised, it needs to be filed with the Court. You will be required to provide your marriage certificate, and sometimes additional documentation depending on you and your partner’s circumstances. For example, if you were born outside of Australia, but are now an Australian citizen, you will be required to provide your citizenship certificate.
How much does it cost to file your application with the Court?
A filing fee of $990 is payable to the Court.
After the application is filed
Once the application has been finalised, filed with the Court, and you have paid the required fee, the Court will allocate a day for a Divorce Hearing. If you filed an application which does not require your attendance at Court, the application will be heard in your absence.
If the application is granted, it will take effect 1 month and 1 day after the divorce order is made.
Additional factors to consider
If your divorce is granted, this does not mean that the financial and parenting relationship between you and your former spouse has been finalised.
If you wish to seek property settlement orders, or orders for spousal maintenance, you will need to commence proceedings within 12 months of the date of divorce. If you are out of time, you should speak to us to see whether you may seek leave of the Court.
You and your former spouse may also wish to formalise parenting arrangements. This may include factors such as:
- where your children will live;
- who will pay for their education; and
- who they will spend time with on special occasions.
If you wish to formalise your current parenting arrangement, or require assistance in negotiations with your former spouse , please don’t hesitate to contact us on (02) 8379 1892 or nevans@barkerevans.com.au.