Formally ending a relationship by filing for a divorce application can be an emotionally difficult process. Even when you’ve concluded your relationship on amicable terms, the thought of dealing with the bureaucracy involved in applying for a divorce can no doubt feel overwhelming.
With that being said, the help of a reputable divorce lawyer will certainly make life easier. In the interim, however, we have created a comprehensive guide to provide an overview of how to get hold of and complete a divorce application form in Australia. By familiarising yourself with the process, you will be better positioned to take the next step in this journey!
What to Know for Getting & Completing a Divorce Application
First, it’s important to know when it comes to the formal dissolution of a marriage, the Federal Circuit and Family Court of Australia oversees the process under Part VI of Australia’s Family Law Act of 1975. Thankfully, to make life easier, it is now possible for people to complete an online divorce application using the Commonwealth Courts Portal. Through this portal, you are able to access your court files, eFile and access court orders around the clock.
Please note that there is a standard fee of $990 payable upon submission of your divorce application. However, some people may be eligible for a reduced rate of $330 given provided evidence.
Before You Start Your Online Divorce Application
Now that it’s an online form, completing your divorce application in Australia is now pretty straightforward. But, before you start, make sure you know the answers to these questions.
Are You Eligible?
If you don’t want to end up wasting time and money, It is crucial to ensure you’re eligible to file for divorce in Australia. To be deemed eligible, you or your former partner must have Australian citizenship or have legally lived in Australia for the past 12 months. You’ll also need to be able to present a valid marriage certificate.
Moreover, in Australia, any couple filing for divorce needs to prove that they’ve been separated for at least 12 months from the day they submit their application. Essentially, you’ll need to persuade the court that the marriage has completely broken down and there is no reasonable likelihood that things can be reconciled.
If you have continued to live on the same property as your spouse after the separation, you’ll need to provide evidence to show you have lived separately in a sense. In cases where you do not have any knowledge of your spouse’s whereabouts, you can upload an application to dispense with service or for substituted service.
Moreover, couples married for less than two years will be required to attend counselling and obtain a counselling certificate to file for divorce. This is to ensure that reconciliation is not likely.
Can a Divorce Be One Sided?
It is possible for one party to file for divorce in Australia. This is known as a sole application. Once you’ve completed the paperwork, you need to serve the documents to the other party, who will be referred to as the respondent. In more straightforward divorce cases, the respondent doesn’t need to sign for the divorce to proceed or be finalised. However, if the applicant and respondent have children under the age of 18 together, they’ll need to attend a court hearing and provide information with reference to parenting arrangements.
In cases where both parties are on the same page about the divorce, a joint application can be submitted. If you choose to file a joint application, one party completes the application and provides a copy to the other party to review and sign. Once the joint application is locked in, the joint applicants simply need to sign the finalised document. In a joint application, there is no need for anyone to serve documents to anyone else. Similarly, court attendance isn’t generally required unless it is requested by one or both parties for some particular reason.
Can You Cancel or Withdraw a Divorce Application?
Once you have submitted your divorce application it is possible to withdraw it. However, you will need to file a Notice of Discontinuance. You can find this also on the Federal Circuit and Family Court of Australia website. Ideally, this notice needs to be filed at least 14 days before the court hearing date. Any notice filed 7 days or less before the court hearing will require you to attend the divorce hearing and ask for the court’s permission to withdraw your application.
Importantly, if you have filed a joint application for divorce but only filed the Notice of Discontinuance as a sole applicant, the other party may still request you attend the court for the divorce order. Therefore, it is best to be clear about your decision to divorce to avoid miscommunications and further time spent in court or completing paperwork.
Can You Apply for a Divorce Application Without a Lawyer?
While it is possible to prepare your own divorce application, many find that hiring a lawyer is very worthwhile as it ensures everything is completed properly. This is particularly so if you have a more complicated case, for instance children are involved.
Please note that the court won’t provide any legal advice to applicants as this would be seen to compromise their ability to remain impartial during the case. Therefore, you need to seek your own lawyer.
What Happens After You Have Sent Your Application?
Every divorce is different. Depending on your circumstances, you may be asked to file further documents, such as affidavits. Additionally, as noted above, applicants who filed a sole application are required to serve their spouse with the divorce papers.
You may also need to attend a divorce hearing. This may be required if:
- It is the case of a sole applicant where there is a child from the marriage aged under 18 years.
- You have indicated that you wish to attend the divorce hearing
- If either party has objected to the divorce being heard in the absence of the two parties.
- The other party files a Response to Divorce opposing the application.
Moreover, those applying for an order for substituted service or a dispensation of service in the circumstances when it is not possible to locate the respondent to serve the court documents will need to attend a court hearing.
It is wise to attend the hearing if you’ve been asked to provide additional affidavit information to further explain your situations, such as being separated but living under the same roof or getting divorced after less than two years of marriage. Being present at the hearing gives you an opportunity to explain things further. It is worth noting that divorce hearings in Australia are held electronically.
Once you’ve presented all the necessary information and the divorce is granted at the hearing, everything will be finalised one month and a day later, unless you’ve presented a special order to the court to expedite the process.
It is a good idea to log onto the portal and opt to receive an email notification to alert you when the divorce is formally granted.
Once the proceedings are complete, and you’ve been notified of the fact, your divorce order will be available to be downloaded from the Commonwealth Courts Portal within a day.
Ready to File Your Divorce Application?
In short, the Australian authorities have taken significant steps in terms of streamlining the divorce application process. Being able to file and track an online divorce application certainly makes life easier during what is likely to be an emotionally tumultuous time in a person’s life.
Of course, although the divorce application process is relatively straightforward, there are more complex cases where couples may be required to attend a divorce hearing or provide additional information than what is presented on the standard divorce application form.
In such situations, it is useful to enlist legal expertise from professionals specialising in divorce and family law. This is where Duffy & Simon can help.
As well as representing your best interests and fighting for the outcome you desire, having an expert family lawyer by your side can give you additional emotional support as you manoeuvre your way through this process and trying time. As a local family law firm, we have helped countless families and individuals achieve their desired settlements. If you currently reside in Melbourne or South-East Victoria, don’t hesitate to contact us to learn more and for our assistance in this difficult period.