Separation can involve dividing your matrimonial property and agreeing to a set of arrangements for your children. Once you have been separated for 12 months, you may also seek to apply for a Divorce, bringing your marriage to an end.
Divorce applications can be quite straight forward provided the eligibility criteria are met and adequate arrangements have been made for the children. The Federal Circuit and Family Court of Australia (FCFCOA) have a lot of information on their website to enable people to make these applications themselves, which you can find here:
Divorce: I want to apply | Federal Circuit and Family Court of Australia (fcfcoa.gov.au)
Eligibility
To be eligible to apply for a divorce:
- You must be separated for at least 12 months with no reasonable likelihood of reconciliation; and
- You or your spouse must:
- be an Australian citizen; or
- live in Australia and regard Australia as your permanent home; or
- ordinarily live in Australia, or have been living in Australia for at least 12 months before filing for divorce.
- You will need a copy of your marriage certificate to apply.
- If you have been married for less than two years at your time of application (i.e. less than one year before separating) you will need a counselling certificate.
Information about the documentation you will need is listed on the Court Website (see link above).
Australia has a “no fault” system and therefore the reasons for your marriage breakdown are not relevant to your Divorce application however, in some circumstances they may be relevant to your matrimonial property or parenting matters.
You can apply for a Divorce despite having continued to reside in the same premises following your separation, but you will need to also file an affidavit. This process is also explained on the FCFCOA website:
https://www.fcfcoa.gov.au/fl/pubs/separated-under-one-roof
How to Apply
You can apply for a Divorce online at Commonwealth Courts Portal – Login page (comcourts.gov.au)
Before you start your application, you must decide whether you are going to make a sole or a joint application for Divorce.
If you and your spouse are still amicable you can make a joint application together which can be a simple and cost effective way forward. You do not need to serve the application upon your spouse, you can share the costs of the application and you will not need to be present on the day that the application is heard.
If you cannot agree to apply jointly, you can make a sole application which then needs to be served upon your spouse. You will need to provide the Court with evidence that you have done so in the form of an affidavit of service.
If you make a sole application and have children under 18 years of age, you will need to appear at the hearing of the Divorce Application. This hearing will be online with a Registrar of the Federal Circuit and Family Court of Australia.
Do I need a lawyer?
Some people choose to have a lawyer prepare their application.
If a lawyer is assisting you with your matrimonial property settlement, it is common to include the suggestion of a joint application for Divorce when negotiating the final settlement. Alternatively, your lawyer can ask your spouse’s lawyer whether they will accept service of a sole application for Divorce if a joint application is not possible.
When to apply
You are eligible to apply once you have been separated for 12 months provided the other eligibility criteria listed above are met.
Importantly, you need to be aware of the twelve month limitation period that begins to run from the day that your Divorce Order comes into effect, that is, one month and one day after the Order is made.
Limitation date for your matrimonial property matters
You have 12 months from the date of the Divorce Order coming into effect to finalise your matrimonial property settlement. It can be advantageous to have this finalised or underway before submitting your application to give yourself adequate time to have this finalised.
If you haven’t reached an agreement about your matrimonial property, it would be prudent to seek legal advice before submitting your divorce application.
If a Divorce Order has been made and you are yet to finalise your matrimonial property settlement, you should seek legal advice as soon as possible and before the expiration of the limitation period.
Some final thoughts
However, you choose to apply for Divorce, consider doing so in a way that you can look back on with pride. This might mean treating yourself with compassion and care and if possible, your former spouse with kindness.
If this is not possible, reach for higher ground.
