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 Sole Divorce

Are you eligible to apply?

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Before you can apply for a sole divorce application, you must first be eligible.

You are eligible to apply for a divorce if any of the following applies to you or your spouse:

  • is an Australian citizen; or

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

  • 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 ground to be provided in divorce proceedings is that there has been an “irretrievable breakdown of marriage”.

 

The sole evidence for establishing the breakdown of the marriage is that the parties to the marriage have separated and continue to be separated for a continuous period of 12 months prior to the filing of the Application for Divorce. 

Evidence of separation under one roof

There are situations that include spouses living together under the one roof, however separated. Spouses are able to apply for a divorce application if they are living under the same roof, providing that they were separated for the 12 month period prior to making the application.

You will need to provide evidence to the court regarding this, by way of an affidavit. If you are filing the sole application, you will need to also file an affidavit, and also an affidavit by at least one other person, who is usually a friend, relative, or neighbour who can provide evidence to the court of the marriage breakdown.

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

 

  • 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 at and end, and the circumstances in which they obtained this knowledge.

 

If you have supporting documentation that confirms the date of separation, for example letters or documents which reflect an alteration of financial arrangements, this information should be be annexed as certified copies to your affidavit.

Bridal Bouquet

Marriage of less than 2 years duration

If you and your spouse have been married for less than two years, there is a requirement that you 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

 

It is important to note that 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 located; or there has been violence in the relationship.

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)

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Document checklist

To file a sole application for divorce, you will need the following:

 

  • A completed Application for Divorce form;

  • Your marriage certificate;

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

  • 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.

  • An affidavit of service; and

  • Acknowledgement of service.

Service of application

A divorce application made by one of the parties is required to be properly served i.e. posted or directly handed to the other party. However, this is not necessary if a divorce application is jointly made.

 

Proof of service involves certain procedures being met, including lodgement of the Acknowledgement of Service with the court within a certain time after the application was served.

 

In circumstances which involve your spouse refusing service or cannot be located, there are other options available, including obtaining a court order substituted service or for the dispensation of service altogether.

Opposing an application

If you disagree with the contents contained in a sole application for divorce filed by your spouse, you can file a Response to Divorce within 28 days of being served with the application for divorce. The Response to Divorce is required to be served upon the applicant and your attendance at the court hearing is required.

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.

 

If the court grants the divorce, it becomes final one month and one day after the hearing date. After that time, you can download the divorce order from the Commonwealth Courts Portal. You cannot remarry until the divorce becomes final.

 Sole Divorce

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