If you are married and have experienced a relationship breakdown, along with arrangements for your children and property you may also be thinking about applying to the Family Court to end your marriage.
Getting a divorce is an important final step in ending a marriage. Divorce will allow the parties to completely separate their financial interests (particularly with respect to your will) and allow the parties to remarry in the future, should you wish.
You cannot remarry another person if you are still married. If you do, you will likely be committing the act of Bigamy, which constitutes a crime. You can, however, be in a de facto relationship whilst you are still married, and you will not be required to divorce for your de facto relationship to be valid in the Court.
A divorce application is separate to a property division and care arrangement for children. You do not need to wait for a divorce before you make arrangements for your property or the care of your children.
In order for the parties to a marriage to apply for a divorce, you will need to meet the following criteria (generally):
- You and your former husband or wife have been separated continuously for over 12 months;
- That proper arrangements have been made for any children of the marriage under the age of 18. This can include Court orders and Parenting Plans, but is not necessary;
- That the parties are ordinarily living in Australia, or have done so for at least the last 12 months; and
- One or both parties regard the marriage as being ended.
You and your former partner may have been separated under one roof for a particular amount of time within that 12 months. For more information on separation under one roof, download a copy of the Family Court’s information brochure here.
Your divorce application can be filed jointly or solely. Completing the application jointly is easier, however if your former partner can’t or won’t complete the required paperwork, you will still be able to divorce them if you meet the criteria above.
Despite appearances, one of the Court’s objectives is to protect the institution of marriage. To that end, the Court allows married couples who are going through separation the opportunity to explore a short period of reconciliation, without affecting a later ability to divorce. Reconciliation will occur when the parties to a marriage both decide to recommence their relationship and live as a couple again.
Reconciliation can be assisted with marriage and couple’s counselling, as well as the support of family and friends.
Sometimes, parties will get back together again permanently and will carry on with their relationship indefinitely. On other occasions, reconciliation may fail and the parties may decide to continue with their separation.
If your reconciliation was for a period of less than 6 months, the Court will accept the separation period before reconciliation as part of the 12 months required. The period of reconciliation will not be included as part of the 12-month separation period though. Simply put, the “clock” will stop. For example:
John and Mary separated on 1 January 2015. They then reconciled, from 1 April 2015 until 1 September 2015, being 5 months. Because this was for a period of less than 6 months, the 3 months before the period of reconciliation will be counted towards the 12 month requirement. So, John and Mary can divorce 9 months later, after 1 June 2016.
If the period of reconciliation is longer than 6 months, then the 12-month “clock” will need to start again. For example:
Peter and Alice separated on 1 January 2015. They reconciled on 1 April 2015. They then separated for the final time on 1 December 2015. Because their separation period was for 8 months, the 12-month “clock” will start again. If there are no further periods of reconciliation, Peter and Alice can divorce after 1 December 2016.
If you require further information about reconciliation, you should consider seeking legal advice.
Drafting your Application
Whether you are making your application jointly or solely, you will need to read and complete a copy of the Family Court’s Form 3 Divorce Kit. You can download a copy here. The Divorce Kit includes all of the information and instructions you need to draft and file your divorce application. Use the kit to work through each part of the form.
Once you have completed the Form, you will need to have it witnessed by an authorised witness (commonly a Justice of the Peace). Justices of the Peace are available at public libraries, as well as certain hours at all Magistrates Courts, and the Family Court. You can find out more by contacting your local Magistrates Court or Library, or searching online.
Filing your Application
One your documents are complete you can file your application in the Family Court. You can do this in person, via mail or fax, or through the Family Court website’s ePortal.
You will need to file the following documents:
- The originally signed Form 3 Application for Divorce, with 2 copies;
- A copy of your marriage certificate;
- If you have separated under one roof, an affidavit. For your affidavit requirements, refer to the Court’s divorce kit. You can find a copy of the standard affidavit form here, and the Family Court’s affidavit instruction kit here . As the affidavit will be sworn evidence you must ensure that the contents are true and correct to the best of your knowledge and belief; and
- Copies of any Court Orders or Parenting Plans already made; and
- Your filing fee.
Your application to the Court will attract a filing fee. For the Court’s filing fee schedule and payment options, click here. You can also download the Court’s fee schedule here. Your application will vary in cost, depending on whether you are seeking final Orders only, or final and interim Orders.
You may be entitled to a reduction or exemption of the filing fee if you meet certain criteria. You will not have to pay a filing fee if you:
- Are under the age of 18;
- You are detained in prison;
- You have a grant of Legal Aid;
- You are receiving youth allowance, AuStudy or AbStudy payments;
- You are the holder of a valid and prescribed Government concession card.
You may also be entitled to a reduction or exemption of the Court filing fee if you are suffering financial hardship or meet particular financial criteria.
You will need to complete the exemption form and file it, along with any supporting documents (eg: a copy of your Government concession card), with your divorce application.
You can also apply for a deferral or refund of your filing fee. Contact the Family Court directly to find out whether this applies to you.
Next Steps and Service
Once your application has been accepted for filing, the Court will allocate your matter to a Magistrate or Registrar to be finalised.
If your application is joint, you will not need to serve another party or appear at Court for a divorce hearing.
If the application is done solely, you will need to serve the other party with a sealed copy of your application. A sealed copy is a copy stamped and received by the Court, returned to you with details of the divorce hearing date for the other party to your matter to be aware of. The Court has very specific rules regarding proper service. If they are not followed, your application may be delayed or dismissed.
Find a copy of the Family Court’s Divorce Service Kit here. You can use this in conjunction with the Court’s standard Service Kit, found here. The Kits include all information you need to serve your former partner, as well as an Affidavit for Service (to be completed by the person serving to prove that service was done) and an Acknowledgement of Service (to be completed by the person being served to confirm that they received their documents).
Any person can serve the other party to your matter, as long as they following the specific instructions as required. You can serve the party directly (if that is appropriate and safe), or you can ask a friend or family member to do so. Alternatively, and more commonly, you can hire a Process Server in the area to serve the Respondent for you. Process Servers are professionals who specialise in the special service of Court documents. You can find a Process Server by searching online or contacting the Court for more information.
After service, you can file the Affidavit of Service and the Acknowledgment of Service in the Court ahead of your hearing date. These documents will serve as evidence that service was effected directly.
The respondent to a divorce application can file a response if circumstances call for it. This is normally in circumstances where the contents of the divorce application are false. If you believe you need to respond to a divorce application, or if you have received a response to your application which may cause it to fail, you should consider getting legal advice.
You will then have to appear at a Divorce hearing. The Court will query the content of your application and may enquire as to why the other party is not involved in the application. It will be important to show that the other party was served with the divorce application and knows about it – have copies of your Affidavit and Acknowledgment of Service ready.
Whether the application is heard at a hearing, or without one, if the Court is satisfied with your application the end result will be an Order for Divorce.
Your Order will become active one month and one day after it is made. A copy of the Order will then be provided to both parties. From that moment, you and your former partner will no longer be married.
If you have any queries about your divorce application, or your divorce Order, you should seek legal advice.