Divorce Q&A With Nardi Lawyers

What is Divorce?

The simplest answer…Divorce is the legal ending of a marriage.

Divorce does NOT finalise property arrangements between the parties, nor does it finalise parenting arrangements. However, it does permit you to remarry.

What must I prove to be granted a Divorce?

There must be an ‘irretrievable breakdown’ of the relationship between the parties. As evidence, the law requires parties to have been separated for at least 12 months before being eligible to apply for a Divorce.

Australia does not have an ‘at fault’ system. Therefore, although the reason for the breakdown is of course relevant in many ways to each party, it is not in itself a factor that is considered by the court in the context of a Divorce. 

If there are children, it is important to provide the court with information about the current arrangements. Children includes any of the following:

• Any child of you and your spouse, including children born before the marriage or after separation;
• Any child adopted by you and your spouse, or
• Any child who was treated as a member of your family prior to your final separation; for example, a step-child or foster child.

Am I eligible for a Divorce?

If you meet the above criteria – irretrievable breakdown of relationship and separation for 12 months, then you will be eligible, subject to satisfying one of the following:

• Be an Australian citizen; or
• Live in Australia and regard Australia as your permanent home; or
• Ordinarily live in Australia and have done so for at least 12 months before the Divorce.

How do I apply?

Applications are now made online through the Commonwealth Courts Portal.

You can apply for either a ‘sole divorce application’ or a ‘joint divorce application’.

What does it cost?

This will depend on a number of factors.

You will need to pay a filing fee to the court to list your application:

• $930 full fee;
• $310 reduced fee – where eligible.
• * These fees change slightly July each year and are accurate as at 1 July 2020.

You may also need to pay a process server to serve the documents – which will normally cost between $150-200 for four attempts in the metro area.

If you engage a lawyer you will also incur legal expenses.

Do I need the other person to consent?

You do not need the consent of the other party to apply for a Divorce. However, if you make a ‘sole’ application, you will need to serve the documents on the other party. You cannot serve these documents yourself. If you are self-represented, then we suggest that you visit the Federal Circuit Court website for their guidelines on service requirements. There are also time limits that you must comply with.

If you make a ‘sole’ application and you have a child under the age of 18, you will also need to attend court for a hearing.

If you make a ‘joint’ application – that is an application together with the other party – there is no need to serve any documents and you will not be required to attend court.

I can’t locate the other person, what should I do?

You must take all reasonable steps to locate the other party. If you are still unable to locate them, you can put their address as ‘unknown’ in the application. You will need to upload a further application seeking an order to dispense with service or for substituted service. 

We have been separated for 12 months, but we did get back together for a time – does that change things?

This can change things, but it depends on how long you were back together. The court will still count the time providing that you only got back together once, and that it was for a period not longer than 3 months. If you stay together for longer than 3 months, then the clock will reset and will begin ticking again if you separate. 

So, if you separated for six months – reconciled for 3 months – and then separated for another six months – you would meet the condition, as the first separation would be counted.

If you were separated for six months – then reconciled for 4 months – you would not be able to count the first six months and your legal separation time would start from scratch.

What if we separated, but stayed under the one roof?

You can still apply for a Divorce, but the court will need to be satisfied that you were actually separated during that time.

If you apply ‘jointly’ for a Divorce – you will each need to file an affidavit outlining the factors that are evidence of living separately, but under one roof. You will also need an affidavit from a witness who can attest to the arrangement that was in place.

If you apply ‘solely’ for a Divorce  – you will need to provide an affidavit and so will a witness.

In order to demonstrate to the court that you were separated, it is helpful to provide the following type of information:

• Whether you slept in separate rooms?
• Whether you were each individually responsible for your own meals and cleaning?
• Did you attend functions as a couple or separately?
• Did you continue to engage in a sexual relationship together?
• Any other factors that can demonstrate that you were living together, but as separated people.

Does it matter if I have been married for less than 2 years?

Yes, it does matter.

The court will require you to attend counselling and provide evidence (a certificate) to the court.

There may be some situations where counselling is not appropriate, such as family violence or where one party cannot be located. In those circumstances, you can apply to dispense with the requirement for counselling.

Do I need to go to court?

You only need to attend court if you have filed a ‘sole’ application and there is a child or children under the age of 18.

However, it is also advisable to attend court in any situation where you have had to file an additional affidavit – be it due to living together under one roof, married less than two years and not suitable for counselling or in situations where you are seeking an order for either substituted service or to dispense with service because you are unable to locate the other party.

When will my Divorce take legal effect?

Your divorce will become ‘absolute’ (final) one month and one day after the court hears your application – the court will provide a Certificate of Divorce at this time and you are then able to legally remarry.

Is there anything else I should do after the Divorce?

You should review, update and/or draft a new will and estate planning documents.

You should also issue proceedings in the court regarding the property within 12 months (if you are unable to resolve out of court). If you do not issue proceedings within 12 months, then you will lose the automatic right to apply to the court for this purpose and you will need to apply for leave before you can have your property matter heard.

Michael Nardi

Director/Principal Lawyer

0491 626 283