Checklist on Separation: Divorce
Often separating spouses confuse the “Divorce” with the property settlement. The Divorce is the process whereby the marriage is dissolved, the husband and wife are treated as no longer being married, and each of the parties are free to remarry. It is not compulsory to apply for a Divorce. But the majority of separated spouses do take this step. To assist you in making an Application for Divorce, we suggest you consider the following tips:
An application for a Divorce cannot be made until the husband and wife have been separated for at least 12 months. If the parties separated on 1 January 2023, the Application for Divorce cannot be filed until 2 January 2024.
The only ground on which an Application for Divorce can be made is that the marriage has broken down irretrievably. The court must be satisfied that the parties have lived separately and apart for a continuous period of at least 12 months.
Spouses can be treated as having lived separately and apart even though they have continued to reside in the same residence. If you and your spouse have lived in the same house but not as husband and wife, then you will need to file an Affidavit from another family member or friend. This document needs to set out the witness’ observations of your separation. The applicant for the divorce will also need to file an affidavit setting out what changed in the relationship after the date when they claim separation occurred.
Separation occurs when at least one party forms the intention to permanently separate, communicates that intention to the other party and acts on that intention.
If, after separation, you and your spouse resume living together for a period of not more than 3 months, then the 12 month period only needs to be extended by the period of cohabitation. For example, if you separated on 1 January 2023, then lived together from 1 February 2023 until 30 April 2023, then you would be eligible to apply for the divorce from 1 April 2024. If the resumption of cohabitation is for more than 3 months, then the 12 month period would need to start again from the date of the last separation.
An Application for Divorce can be made by one party or jointly by both parties to the marriage.
You will need a copy of the Certificate of Marriage when filing the Application for Divorce.
You can file the Application for Divorce online if you are registered to use the Commonwealth Courts Portal.
There is a filing fee of $1,060.00 (as at 1 July 2023) when you file the Application for Divorce. You may be able to apply for a reduction in the fee if you have a Centrelink Concession Card or a Health Care Card or if the Court accepts that you would suffer financial hardship if you were required to pay the full fee.
Once the Application has been filed, it will be listed for a hearing. If the Application has been made by only one party to the marriage, it will be necessary for that party to serve the Application on the other party to the marriage. The Application needs to be served on the party personally (usually by a bailiff) or by post. If you need to make arrangements for a bailiff to serve the Application there is a cost involved. If you serve the Application by post, it is recommended that you send the document by registered post and request a delivery confirmation receipt. The other party will then need to sign for the document. You can produce the signed receipt to the Court as evidence that the other party has been served if they fail to sign the Acknowledgment and return same to you.
Once the Application has been served, you will need to file an Affidavit of Service prior to the hearing date for the Application.
If you are having difficulty in serving the Application, you may need to make an Application to the Court for service to be dispensed with or for substituted service.
If there are children of the marriage who are under 18, then the party who has applied for the divorce must attend the hearing. You will need to advise the Court that there has been no change to the arrangements for the children since completing the Application or provide details of changes.
The Divorce becomes final one calendar month and one day after the day the Application is granted at the hearing. For example, if the Application is granted at a hearing on 1 April 2023, the divorce will not become final until 2 May 2023. A calendar month means a period commencing at the beginning of a day of one of the 12 months of the year and ending immediately before the beginning of the corresponding day of the next month or, if there is no such corresponding day, ending at the expiration of the next month.
You cannot get married again until after the divorce has become final.
You have 12 months from the date the divorce has become final within which to finalise your spouse maintenance and/or property settlement or to commence proceedings in the Federal Circuit and Family Court of Australia for property settlement. If the divorce becomes final on 2 May 2023, you must commence proceedings in the Court by no later than 2 May 2024.
WARNING
This article reflected the state of the law at the time of publication. But the law is a living creation which is constantly changing and adapting. These articles should be treated as an information resource only and not as a substitute for specific legal advice in respect to your particular problems and circumstances.
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