What you need to know about divorce
In my experience, many clients don’t find it necessary to apply for a divorce. They don’t plan on remarrying so it is a step that they just don’t bother with. For others, it is an important step - they wish to finalise a chapter and see this step as an integral part of moving forward and starting a new chapter.
A divorce is only required at the ending of the relationship where a marriage has taken place. This marriage could be in Australia or overseas.
To be able to get divorced, you need to show that your marriage has ‘irretrievably broken down’. This is demonstrated by being separated for 12 months or more, and there being no likelihood of the relationship resuming. It is important to note that you can be separated and living under the same roof. You will just need to provide evidence that you were officially separated.
Something that I repeatedly remind clients when getting a divorce is that while a divorce will bring about a legal end to the marriage, it is important to keep in mind that it will not finalise property division or formalise arrangements for the children.
In Australia, you have until 12 months from the date of your divorce to finalise your property settlement so I strongly recommend to clients to deal with property settlement first before getting a divorce.
What is the process for divorce?
The process of obtaining a divorce is one of the easier legal steps and there is a choice on how you wish to file for divorce. There are many services available, ranging in price and it can be awfully confusing. Here is a summary of your options;
Do It Yourself
Visit the Family Law court website and download their online divorce kit. All the steps are provided. Please note that you will be required to attend a court hearing if there are children under 18 of the marriage. (Free)
Online divorce settlement service
There are 2 types of service in this category;
2.1 Full Service including court documentation, court filing and attendance at the divorce hearing on your behalf. (Approx $499 - $1,299 depending on type of application)
2.2 Part Service including court documentation only. (Approx $99 - $199)
Solicitors
Traditional law firms and local family solicitors also provide the service of preparing court documentation, filing paperwork in court and attending the divorce hearing on your behalf, but at a more significant cost. (Approx $2,500 - $6,000 depending on type of application)
Important things to remember :
If you or your spouse is born overseas, as long as one of you is a permanent resident or an Australian citizen or you have lived here for 12 months prior to filing your divorce application, then you are eligible to apply for divorce in Australia.
Once you are divorced, you have only 12 months from the date to have either finalised your financial affairs, particularly your property settlement and any spousal maintenance arrangements.
*If you and your spouse have lived at the same address for some or all of the separation period, you will need to provide two affidavits describing your separation when you file your Application for Divorce. An affidavit is a written statement of evidence. (additional cost applies)
There is a mandatory court ordered filing fee of $930 on top of the Simple Separation charge (a reduced filing fee of $310 applies if you are a concession card holder)
With a divorce, it can have a significant impact on any existing will and you should get specific legal advice on that issue from a family or estate lawyer.
To be eligible for divorce in Australia, you need to live in Australia and have been separated for at least 12 months.
For sole applications, in circumstances whereby your spouse will not sign an Acknowledgement of service of the application for divorce, a third party process server will need to be arranged to serve your spouse.
You will need a marriage certificate to be filed with your divorce application. If you don’t have one, you can order one from the Court Registry where you were married. The price varies from state to state and is around $65.
You can get divorced if you are separated and living together, it means that you will need to provide evidence that the relationship has come to an end, through sworn affidavit evidence.
What information is required on a Divorce Application?
A divorce application requires various pieces of information to be provided, such as;
Full names of the parties
When the marriage occurred and where it occurred
Date of marriage and date of separation
Whether after separation the parties lived under one roof and if so the periods when this occurred
Whether there is any likelihood of reconciliation of the marriage
Whether there are any children of the marriage or other children of the household who are under 18 years of age on the date of making the application (even if they turn 18 between the application date and the hearing date). This includes any children of prior relationships or other member of the household.
Details in relation to the children including their education, health, financial support and how they spend their time between the parties.
If there are any previous orders made by a Court including in relation to children, property or domestic violence.
When is it necessary or unnecessary for a Sole Applicant to arrange service?
There is an opportunity to avoid the extra and unnecessary cost of having to arrange service by a third party process server. This can be done by way of having your spouse sign an acknowledgment of service (email accepted if you have email contact details). If the acknowledgment is received, an affidavit of service is then prepared which attaches the acknowledgement of service and the applicant will then need to sign/swear the affidavit confirming that the signature on the document is that of their spouse.
In some cases your former spouse does not wish to or refuses to sign the acknowledgement of service. This will cause the need to arrange personal service. An applicant cannot serve their own application but an adult third party can serve the application. It is usually the case that a professional process server is engaged to arrange personal service. Once the application has been handed to the respondent’s house then an affidavit confirming the details of how service occurred is then prepared and filed with the Court.
What if the applicant does not know where their former spouse lives.
If you cannot locate your former spouse or know where they live, there are two possible ways for your divorce to continue to proceed. These are called a request for substituted service or alternatively a request for dispensation of service.
Christina Salvo, is the founder of Simple Separation, an online divorce settlement service. For more information on Divorce Applications and to obtain a free quote, click through to our Divorce Application. Please share this blog with anyone you know wanting to know more about finalising their divorce.