So you have decided to divorce your spouse. There are a few things that you need to know before you take this step.
Proving you meet the requirements of Divorce
The only legal requirement that you need to meet in order to file for a divorce is to prove that the marriage has irretrievably broken down. This is proven in one way only – by the parties having lived separately and apart for twelve months and a day.
There are provisions whereby parties can prove the marriage has broken down while they are still living under the same roof, but they must be able to show that they have lived separately and apart during that time.
You can make a sole application for divorce or a joint application. A sole application means that your spouse does not sign or necessarily have to agree with the application. Once you have filed it you will need to have a sealed copy served on your spouse. This is usually carried out by a process server who will provide you with an affidavit of service that must also be filed with the court to prove the other party has been served. (You cannot serve it yourself!)
A joint divorce is simpler. This is where both parties agree to the divorce, and both sign the application. In this case there is no need for service of the divorce on either party.
If you have children under 18 years of age, you must attend at the court on the day of the divorce hearing. If you do not have children under 18 years of age you are not obliged to do so.
The Federal Circuit Court of Australia (“FCCA”) has sole jurisdiction to deal with applications for divorce.
Accordingly, whether you choose to file for divorce electronically through the court website, or do a paper application, you must do so through the FCCA and not the Family Court.
Both types of divorce can be done online with a relatively user-friendly site on the FCCA. The current filing fee is a whopping $990.
That is the charge that the court makes for filing your application and for the subsequent hearing.
If you can prove financial hardship you may be able to seek a reduction or even an exemption from that fee.
Questions and Answers on Divorce Proceedings
Is it necessary for our property settlement to be completed before I file for divorce?
No, you can file for divorce after you have been separated for one year and one day, irrespective of whether you have finalised your property settlement. However, it is important to note that there is a time limit of 12 months from the day your divorce becomes final to finalise your property matters, either by way of consent orders, binding financial agreement or orders of the court. The 12-month time limit is not an absolute bar to proceeding in property matters, but there are certain steps that must be taken to be able to proceed after 12 months.
Do I need a solicitor to make an application for divorce?
That depends on your circumstances. The court has made the procedures more accessible to the public and many people undertake their own divorces. However, in some circumstances, the court requirements can be difficult to follow, and assistance may be required.
How much does it cost to get a divorce?
That depends on your particular circumstances. The filing fee is a charge the court makes. A joint divorce generally costs less than a sole divorce.
How We Can Help
To obtain an estimate of costs, call our expert divorce lawyers and one of our experienced family lawyers will be happy to discuss this with you.
We are available to meet with you at any of our local offices (Brisbane, Gold Coast, Beenleigh, Cleveland and Jimboomba) or by telephone or video-conference.
This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.
This article was originally published on September 30 2020, it was last updated on the 20 July 2022