Making a divorce application in Australia is, generally speaking, a straightforward process and in comparison to some other jurisdictions, it is a quick process. Many ex-spouses will make a joint decision to make an application, in the spirit of cooperation and ensuring the process is as smooth as possible for all parties involved, including any children of the marriage. However, this is not always the case and if you and your ex-spouse do not agree on getting a divorce, the Court recognises your right to be able to apply for a divorce on your own.
If you and your ex-spouse are amicable enough and decide to file a divorce application together, you will be filing what is known as a Joint Application for Divorce. If you decide to make the application by yourself, you will be filing a Sole Application. It is important to know the differences between a Joint and Sole application as although the requirements are consistent, they do differ.
Before making an application, either joint or sole, you need to ensure that you meet the eligibility requirements. The following will determine if you can apply in Australia:
1. You (or the other party if you are making a joint application) must either be an Australian citizen (either by being born in Australia or having been granted an Australian citizenship)
or you have been lawfully residing in Australia for a minimum period of 12 months; and
2. The marriage has broken down with no likelihood of reconciliation, and this has been communicated by at least one of the parties to the marriage; and
3. You have been separated for a minimum period of 12 months.
Certain supporting documentation is also required, including:
1. A clear, colour copy of your marriage certificate. It must be in English and if you do not have an English copy, you must have it translated by an accredited translator and have them
complete the relevant court form, namely an Affidavit – Translation of Marriage Certificate.
2. If you were not born in Australia, you will need to file a clear, colour copy of your Australian Citizenship Certificate, current Australian passport, current Visa or DHA Movement
If you satisfy these requirements and have copies of the required supporting documents, you can proceed with either a joint or a sole application.
A joint application involves both parties to the marriage jointly filing and signing the application. Both parties are required to complete the Application and be satisfied with its contents and then sign the Affidavit for e-Filing in front of an authorised witness (a Justice of the Peace or solicitor) before it is filed. Once the relevant documents are filed via the ComCourts portal, a hearing date will be set which is typically 6 to 8 weeks after the date of filing, however it depends on the Court’s load. At the hearing the Court will make an order either granting or denying your divorce. The Court will deny your order if you haven’t met the eligibility requirements referred to above. The Court may allow you to file additional material to show you meet the eligibility requirements and adjourn your hearing for another day.
If you have been separated for the required 12-month period but have been living under the same roof as your ex-partner and are applying for a joint divorce, you and your ex-partner are required to file an affidavit each. The purpose of the affidavits is to explain to the Court why you were separated but living under the same roof. The affidavits must be signed and witnessed by an authorised witness prior to filing.
The benefit of a joint divorce is that you are not required to attend the hearing, regardless if there are any children of the marriage under the age of 18 years.
A sole application differs from a joint application, in that the applicant is required to serve the application on the other party (the Respondent), by post or by hand, at least 28 days prior to the hearing. If the other party resides overseas, then service must be completed at least 42 days prior to the divorce hearing. The Respondent will need to sign an Acknowledgement of Service form, upon being served with the application. You should only attempt service by post if you are confident that the other party will return to you their signed Acknowledgement of Service.
If you attempt service by hand, please note that you, as the Applicant, cannot serve the documents on your ex-partner yourself. You will need to arrange for an independent party, over the age of 18 years, to serve the documents. A family member or friend can do this, alternatively you can engage a process server (for a fee) to serve the filed application and supporting documents and collate the relevant documents.
The signed Acknowledgement of Service (Divorce), or if you engage a process server, their Affidavit of Service by Hand, need to be filed via the ComCourts portal prior to the date of the hearing.
If you and your ex-partner have been separated but living under the same roof, you must complete and sign an affidavit explaining the circumstances to the Court. In addition to your affidavit, you must also have an independent third party (a family member, friend, or colleague) complete and sign an affidavit confirming that you were separated whilst still living with your ex-partner.
You are required to attend a sole divorce if there are children of the marriage under 18 years old at the time of filing. If there are no children of the marriage, the Court can rule on your divorce in your absence.
The breakdown of a marriage can be difficult for all parties involved. Thankfully, the process is a relatively straightforward and time efficient process. Engaging in a joint divorce application is recommended as the simplest and easiest process, especially if you and your former partner are willing to cooperate to finalise your separation, and neither of you wish to attend the hearing. A sole application is particularly useful when you wish to apply for the divorce yourself without involving your former partner whether that be because the separation is not amicable, or you have lost touch with your ex-spouse. It is important to understand the process required for either a sole or joint application to make the decision best suited for you and your circumstances.