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Sole Divorce Application

Evolve Legal - Going Solo: The Ultimate Guide to Sole Divorce in Australia <span id=Going-Solo:-The-Ultimate-Guide-to-Sole-Divorce-in-Australia>   </span>

Going Solo: The Ultimate Guide to Sole Divorce in Australia  

In Australia, a party to a marriage can file an Application for Divorce after being separated for a minimum of 12 months and can choose whether they wish to file a Joint Application or a Sole Application.

A Joint Application is where both parties to the marriage agree to prepare, sign and file the Application. It can be a more straightforward process and means that neither party is required to attend the divorce hearing, even if there is a child or children of the marriage under the age of 18 years.

As you would expect, a Sole Application is where a party applies for divorce on their own without the involvement of the ex-spouse. The party making the application will need to attend the divorce hearing if there are children of the marriage under the age of 18 years.

 

Going Solo: The Ultimate Guide to Sole Divorce in Australia

Sole Application Service  

Sole Applications also differ from Joint Applications in that there is a requirement of service, meaning the filed court documents stamped with the Court’s electronic seal must be served on (given to) the ex-spouse to notify them of the court proceedings involving them. Service must be completed within specific timeframes depending on whether the ex-spouse lives overseas or in Australia.

If the ex-spouse lives overseas, service must be completed no later than 42 days prior to the divorce hearing. If they live in Australia, service must be completed no later than 28 days prior to the divorce hearing.

Generally speaking, service is a relatively straightforward process. Pursuant to the Rules, service must be effected one of two (2) ways:

  1. Post, whereby you print out and send copies of the court documents to the ex-spouse’s address; or

 

  1. Personal service, whereby a third party personally hands the court documents to the ex-spouse.

Acknowledgement of Service (Divorce)  

In addition to the sealed court documents, the ex-spouse must also be served with an Acknowledgement of Service (Divorce) for them to sign and return. The party applying for the divorce should then file the signed Acknowledgment of Service (Divorce) to provide the Court with evidence that service has been successfully effected and acknowledged by the ex-spouse. A copy of this document can be found here.

If there is no signed Acknowledgment of Service filed then the Court may decline to grant the divorce order at the hearing as there is no evidence of successful service. In these circumstances, the Court will generally adjourn the hearing and request the party obtain a signed Acknowledgment from the ex-spouse and then file same.

Potential Complications of Service and Solutions  

In some cases, service can be quite complicated, especially when the location of the ex-spouse is unknown, or they are dodging service or are unwilling to sign the Acknowledgment of Service. In these circumstances, you can make an Application in a Proceeding (“Application”) to the court seeking one or both the following options:

  1. Substituted service; and/or

 

  1. Dispensation of service.

Substituted service is where the party making the Application requests that the Court to allow service to be effected by alternative means like email or text message, or by serving the court documents on a third party (like a family member, friend or employer) who the Court is satisfied will bring to the attention of the ex-spouse.

Dispensation of service is a more difficult order to obtain. The Court must be satisfied that the party making the Application has made all reasonable attempts to locate the ex-spouse. If satisfied, the Court will grant orders that the requirements of service by dispensed with (or waived).

In submitting such an Application to the Court, you can seek orders for dispensation of service in the first instance, and in the alternative request the Court to make orders for substituted service. Ultimately, it is up to the Court’s discretion whether they grant substituted service or allow it to be dispensed with altogether. A copy of the Application you will need to prepare, sign and file can be found here.

In addition to the Application, a detailed Affidavit will also need to be filed setting out all attempts to locate the ex-spouse and any and all attempts of service on them. Evidence of the steps taken by you can be attached at the end of the Affidavit as “annexures”.  A copy of the Affidavit form you will need to prepare, sign and file can be found here.

Once the Application and Affidavit have been filed, a court hearing will be allocated which is normally the same time and date as the divorce hearing. The party making the application (or their solicitor) will need to attend a court hearing and appear before the Registrar. Even if there is not child or children under 18 years of age of the marriage, you will need to attend the hearing in the event an Application for substituted service or dispensation of service is made.

At the hearing, the Registrar may require you to provide further information to the Court, or they may decide to adjourn your case again and direct you to take further steps to locate or make additional service attempts on the ex-spouse. Ultimately, it is up to the discretion of the presiding Judicial Registrar if they are satisfied with the Application and decide to grant the Orders sought.

If you require assistance with a divorce application, please get in touch with the team at Ramsden Family Law.

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