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 Joint Divorce

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Are you eligible to apply?

A joint divorce application involves both you and your spouse agreeing to prepare and file a joint application together. Therefore, both you and your spouse are “joint applicants”.

 

The benefit of filing a joint divorce application (as opposed to a sole application) is that neither you or spouse are required to attend the divorce hearing, unless you choose to, and neither spouse needs to be served with divorce application.

To determine whether you are eligible to apply for a divorce, you or your spouse must be able to answer 'Yes' to either of the following:

  • is an Australian citizen;

  • or ordinarily lives in Australia and has lived in Australia for the year immediately before the divorce application;

  • regard Australia as your home and intend to live indefinitely in Australia.

Grounds for divorce

Australia has a no-fault system for the dissolution of marriage. The only thing to be provided in divorce proceedings is “irretrievable breakdown of marriage”. The only way to prove this is to demonstrate that the parties have been legally separated for at least 12 months.

If there is no doubt about the date of separation, and the arrangements for any children are clearly appropriate, the court will probably grant the divorce on the application of one party even if the other party does not want it.

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Evidence of separation under one roof

If the applicant (or applicants) claim that there was “separation under one roof” for any part of the vital 12 months, the court will require evidence of this.

An affidavit must be filed from:

 

  • The applicant, or at least one of them; and

  • At least one other person (friend, relative, neighbour) with knowledge of the couple and the circumstances of the marriage breakdown.

 

The affidavits must be sworn and filed in accordance with the rules about affidavit-making. They should also:

 

  • Identify the person making the affidavit and their relationship to, or identity as one of, the parties; and

  • Attest to the person’s knowledge of the fact that the marriage is over and the circumstances in which they obtained this knowledge.

 

If you have documentary evidence of the date of separation - something signed by both of you at the time, or letters or documents dating changed financial arrangements - certified copies should be numbered and attached to the affidavit. Make sure the affidavit identifies and refers directly to all attachments.

 

You will also need to attach your marriage certificate, or a certificate copy of it, to your divorce application. If the certificate is not in English, you will need to obtain a translation and a short affidavit by the translator.

 

The substance of the affidavit is contained in the divorce application form itself, but is obtainable as a separate document, called an Affidavit of Translation of Marriage Certificate, and available from the court website > https://www.fcfcoa.gov.au/fl/forms/affidavit-trans-marriage-cert

Marriage of less than 2 years duration

If a marriage has lasted for less than two years, the parties must attend counselling to investigate the prospects of reconciliation. A document known as the “Counselling certificate for applicants married for less than two years”, signed by a family counsellor, should be attached to your application for divorce. The certificate states that the person has “considered” reconciliation with the assistance of a specified person, being a family counsellor or other nominee.

 

The certificate is available from the court website > https://www.fcfcoa.gov.au/fl/forms/counselling-cert-lessthan2

 

Joint family counselling may not be advisable or practicable for a number of reasons, for example:

 

  • the other party refuses to attend;

  • the other party cannot be found; or

  • there has been violence in the relationship.

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Which court to file the application?

Applications for divorce must currently be lodged in:

 

  • the Federal Circuit and Family Court of Australia; or

  • Family Court of Western Australia.

Court filing fee

As at 1 July 2021 the standard fee for lodging a divorce application is $940. A reduction in fees (to $310) may be payable in cases of financial hardship, if you have a healthcare card or if you are otherwise eligible as described in Regulation 2.06 of the Family Law (Fees) Regulations 2012. You will need to complete and file an “Application for Reduction of Court Fees (Divorce)” form which is available from the court website > https://www.fcfcoa.gov.au/fl/forms/app-reduction-divorce-nullity-gen

Electronic filing

All applications for divorce are required to be filed online through the Commonwealth Courts Portal, which can be accessed here > Commonwealth Courts Portal - Login page (comcourts.gov.au)

Document checklist

To file an application for divorce, you need:

  • A completed Application for Divorce form; Your marriage certificate;

  • If you have been married less than two years, a signed counsellor’s certificate; and

  • If you have been separated under one roof for any part of the 12-month separation period:

    • An affidavit from one or both of the applicants; and

    • An affidavit from a person associated with the couple.

Service of application

An divorce application made by a single party must be properly served i.e. posted or directly handed to the other party. This is not necessary if a divorce application is jointly made.

 

Proof of service of the documentation must be lodged with the court within a certain time after the application has been filed. The rules for proper service are quite technical and you may seek the services of a professional process server unless you can be sure that the party will be doing their best to cooperate by returning to you the signed “Acknowledgement of Service” form to enable you to prove service.

 

If your spouse is refusing service, or cannot be located, there are procedures available for getting a court order for substituted service, or more rarely, to dispense with the requirement for service altogether.

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Advantages of joint applications

Sharing of the court filing fee

 

If you apply for a divorce by yourself, you will have to pay the full fee. Although, if you apply jointly with your partner, it is not uncommon for

the cost to be shared equally.

 

Court attendance not required

If you apply jointly, you can ask for the application to be heard without either of you attending at court, even if there are children under 18 involved. If you apply on your own, and you have a child, you must attend the hearing.

No requirement for service on the application on your spouse

 

If you apply by yourself, you must comply with the rules for service to ensure that the other party has formal notice of the commencement of proceedings.

If you apply together, there is no requirement to serve the application on the other.

Working together towards closure

 

It is a genuine step towards acceptance of a peaceful resolution of issues,

if the parties can move forward cooperatively, to formalise the end of the relationship. By contrast, the arrival of unexpected divorce documents in the mail, or on the doorstep at dinnertime in the hands of a process server, is an unpleasant and confronting experience that tends to aggravate disagreements.

Timeframe of the process

The average time between filing an Application for Divorce and receiving the Divorce Order varies between registries, however an undisputed joint application (with no service requirements) that is not delayed because the court requires further extra information, could take four months or more from the date of filing to receiving the divorce order.

 

When you file your application online, you can elect the date of your hearing, based on the registries availability.

 

After the hearing, if the court has established that the requirement of separation has been met, the court will issue a decree nisi. This usually lasts for 30 days, unless:

 

  • there are pressing reasons why the period should be shorter; or

  • the court has asked for more information (e.g. about arrangements for the children) which may require another court appearance and prolong the decree nisi period.

 

At the end of the period, and when any conditions specified in the decree nisi are satisfied, the decree nisi absolute is issued. This is also known as the divorce order.

 

For the vast majority of applications, the minimum decree nisi period applies. If this is the case, the court will issue the divorce order one month and one day after the date of the decree nisi.

 

If your divorce application has been successfully approved by the court, the divorce order will be available online from the Commonwealths Court Portal.

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