Mathews Family Law & Mediation Services have created many detailed articles answering the most common questions people have in relation to their rights and Australian Family Law.
Divorce – The Details
Australia does not recognize “fault” based divorces; rather one must show that the marriage has broken down irretrievably. One may only show such a break down by establishing that the parties in fact separated, and have lived apart for at least 12 continuous months prior to filing an application for divorce. Bear in mind that the day the parties separate is not counted in the 12 month calculation. Thus, the application for divorce may not be filed until twelve months and one day have passed since separation.
While the above requirements seem fairly straightforward, a lot of questions can arise with regard to divorce. This article is designed to give you an in depth look into all of the issues surrounding divorce and answer any questions you may have.
What constitutes separation?
First, showing a physical separation between the parties for the specified time period is not enough to establish legal separation. Legal separation is more than mere physical separation, and must also evidence a breakdown of the marital relationship.
Whether parties are actually separated is going to differ from case to case, and is largely a question of fact. The law requires a substantial breakdown of the marital relationship be shown, but there is no further clarification as to what exactly that means. Australian courts have carved out three elements that are required in order to establish a valid legal separation.
You may have noticed that physical separation is missing from the above elements. Does that mean that you can have a valid legal separation while still living in the same home? Surprisingly, the answer is yet. The Family Law Act of 1975 addresses this issue head on and specifically states that a separation can exist even where the parties have continued to reside in the same residence.
Bear in mind however, that courts are cognisant of false claims of separation so it is advised that the parties have evidence to corroborate that they are separated despite living under the same roof. The aforementioned elements of intent and action must still exist, so if you chose to remain roommates while separated, make sure you can still prove both. Also, you will have to submit an affidavit which details the arrangements you have made with regard to where each party sleeps, the extent of household services rendered, if there are separate bank accounts, etc. You are also required to have a witness, such as a family member, friend, or neighbour submit an independent affidavit to corroborate your separation.
Remaining in the same house during your separation may have some benefits, for instance, it is less expensive, and if you have children it will be less disruptive on their lives. However, if you chose such an arrangement you must be prepared to disclose personal information such as sleeping arrangements to the court in your affidavit.
What about the resumption of cohabitation?
Say you separate, and then a few months into your separation you and your ex decide to try and make things work. You move back in with your ex and give it a shot. What effect does this have on your otherwise valid separation?
First, resuming cohabitation is not as easy as simply moving back in together – as we discussed previously, you can still be legally separated and living under the same roof. In order for cohabitation to affect your separation, your new relationship needs to look similar to the way it did when you were married. For instance, simply moving back in together will not be enough to establish the status of resumption of cohabitation, this only exists when the relationship mirrors, or is substantially similar to your previous relationship. Additionally the occasional slip up, or casual acts of intercourse will not be enough to establish a resumption of cohabitation.
The major thing to keep in mind regarding resumption of cohabitation is how long the cohabitation lasts. Should your reconciliation last less than three months, you are permitted to count the time you were separated prior to getting back together in calculating the twelve months of separation required before being eligible to apply for a divorce. On the other hand, if your reconciliation lasts for three months or longer, you must begin a new twelve-month period of separation before you may file an application for divorce.
If you resume cohabitation after you have already filed for divorce, it may be grounds for the court to refuse your application. The court will look at your relationship as of the date of the hearing (not the date you filed your application), to determine if the application should be denied based on reconciliation. The party wishing to show the reconciliation must bring evidence in support of her argument. However, a reconciliation after filing for divorce does not mean your application will automatically be denied. The court will look at your unique circumstances and make a decision based on such.
How do I apply for divorce?
After you have been legally separated for twelve months, you, your partner or both of you jointly may file for divorce. However, the court will only entertain an application filed by a party who is a citizen of Australia, has been an ordinary resident in Australia for at least twelve months prior to filing, or is domiciled in Australia.
The actual application form can be downloaded at www.fmc.gov, and may be filed in the Federal Circuit Court in all states and territories. However, in Western Australia your application must be filed in the Family Court of Wester Australia. Should you prefer to have a lawyer apply for a divorce on your behalf, go to www.divorce-online.com.au.
If you and your ex are not filing jointly for divorce, but rather you are unilaterally filing the application, you will need to serve your ex spouse with the following documents.
There are two ways in which you can effectuate service; you can do so by post, or personally by a person other than yourself who is over the age of 18. If you are serving someone in Australia, you must do so 28 days prior to the hearing date. If service is taking place outside of Australia then it must take place at least 42 days before the hearing. Additionally, if you know your ex spouse is represented by a lawyer, you should check with their lawyer as they may have been instructed to accept service on their client’s behalf.
If you are unable to locate the person you wish to serve, the court can either permit substituted service or dispensation of service. In either case you will need to apply this type of service, and submit an affidavit explaining why the respondent cannot be located. The court will only grant your application if it is satisfied that you have taken the appropriate steps to locate the respondent prior to filing an application for substituted service or dispensation of service.
What happens at the divorce hearing?
Once you have successfully submitted your application for divorce, and served your ex spouse, there will be a hearing. If you filed your application for divorce jointly the hearing will take place within 28 days of filing, otherwise the hearing will take place within 42 days after the filing (56 days if the respondent is not in Australia).
If your application for divorce is successful, the court will issue an order for divorce. This order will automatically take effect one month after the order is granted. Should reconciliation take place after the order is issued but prior to the order taking effect, the court has the discretion to rescind the divorce order.
It is important to bear in mind that your application and hearing for divorce is limited to just that. This is not the venue for you to raise issues regarding support, maintenance, and child support. The court has an interest in making sure that arrangements have been made with regard to any children affected by the divorce, but no matters beyond such arrangements will be raised at the divorce hearing.
Divorce – The Basics
Australia does not require a showing of fault in order to be granted a divorce. For instance, you do not have to show adultery, abandonment, abuse, or anything else to be eligible to apply for divorce. You simply must prove that the marriage has broken down irretrievably, by showing that you have lived apart with the intent to sever the relationship for twelve consecutive months.
Once you have satisfied the twelve-month separation requirement, you may file an application for divorce. You may do so individually or jointly, however should you file individually you will need to serve your ex spouse with the appropriate paperwork. After valid service of process there will be a hearing, and the court will either grant or deny your application for divorce. If the order is granted, it will automatically become effective one month after it is issued.
Divorce is fairly straightforward, and simply denotes the end of a marriage. The process is easy to follow, and the necessary forms can be found online or you can have a lawyer apply for a divorce on your behalf at www.divorce-online.com.au.
Should you anticipate that your divorce would involve more complex issues or questions related to property division, child support and maintenance, then you should contact a lawyer.
Divorce is the legal word for the termination of a marriage. In Australia, there is no need for there to be “fault” in order for the divorce to be permitted. So even if only one partner wants out of the marriage, the court will grant a divorce order. But there is still a legal process involved that generally takes up to a year to complete.
Issues related to divorce in Australia are covered in Part VI of The Family Law Act, 1975 (link to the law). The law says that a divorce order is based on “the ground that the marriage has broken down irretrievably”.
Step One: Separation
Before one or both partners may file for divorce in Australia, they must be separated for a period of one year and a day. This is in order to show that the ground for divorce – the breakdown of the marriage – really exists. While no fault must be shown, the law considers divorce a serious matter. By requiring this long period of separation, a couple is required to think very carefully about their decision to terminate their marriage. A court may ask for proof of the separation during the hearing (to be discussed further).
It is important that one partner officially notify the other that he or she wishes to separate. This can be done verbally but a written notification is even better and can be used in court in the event that questions arise about the date of separation or whether it happened at all.
Step Two: Completing an Application for Divorce
One or both partners must fill out a standard Application for Divorce. This form may be found at the Family Law Courts website. It requires a good deal of information, including personal details about each partner, financial information, questions about property, and details about your children (if you have any) and custody arrangement if they are under 18 years of age.
While this application can be completed without a lawyer (other than the affidavit in Part G), it’s useful to consult with a lawyer to be sure that you’ve completed the application properly and accurately.
Step Three: Submitting the Application for Divorce
You must file the Application for Divorce in three copies – an original and two copies, along with a copy of your marriage certificate and any other accompanying documents (see below). This packet can be filed at the nearest family law registry or on-line at www.comcourts.gov.au.
There is a fee for submitting an Application for Divorce. As of January 1, 2013, the fee is $800 but it is also possible to obtain a reduced fee.
Once everything is filed and paid for, you’ll receive a file number and a time and date for your hearing.
Step Four: Serving Your Spouse
If you filed your Application for Divorce together with your spouse, then nobody needs have the application delivered to them.
If you are submitting the Application for Divorce alone, you need to serve your spouse with a copy of the application, the “Marriage, Families and Separation” brochure and any other documents you filed with the court (except the marriage certificate).
The Divorce Service Kit details how these documents are to be served on the other spouse. Consult with a lawyer before taking any legal action to be sure that you understand all of the implications of your actions and that delivery is done correctly.
Step Five: The Hearing
You are not always required to attend the hearing.
If there are no children under the age of 18, neither you nor your spouse needs to attend the hearing.
If this is a sole application (not joint with your spouse) AND there is a child under 18, you must attend the hearing.
If this is a joint application, regardless of the age of the children, neither of you needs to attend the hearing.
Step Six: The Hearing
The hearing allows the judge to ask any questions regarding the Application for Divorce. If the judge decides more information, he or she may schedule an additional hearing. If the judge is satisfied with the application, a divorce order is granted at the conclusion of the hearing. The order becomes final only one month later.
Under Australian family law, child support following a divorce is governed under the Child Support (Assessment) Act of 1989. Child Support Agency is the institution responsible for evaluating how much child support should be paid and also for collecting it from the parent. This agency falls under the control of the Department of Human Services. The Child Support Agency performs functions such as evaluation upon receiving an application from the parent who has custody of children. A specific formula is being used to determine the amount of child support that the other parent is liable to pay.
The formula takes into account a number of factors such as the annual income of both the parents, the age of the child and the costs that may be reasonably expected in taking care of the child. In order to arrive at a more equitable assessment, the formula also takes into consideration how much time the mother and father spends with the child. To further prevent overburdening either parent, the formula also considers whether the parent is already liable to pay child support as a result of an earlier divorce. The formula is also available on the website of the Child Support Agency and can be used by the parents independently.
In few special circumstances, however the law permits some deviation from the prescribed formula. One such situation might involve either parent incurring substantial expense in traveling over to spend time with the child. In cases where the actual financial resources of the parent differ from their declared income, the difference may also be taken into account to arrive at a fairer assessment.
In most cases, the child support payments are made to the Child Support Agency every month, from where they are then forwarded to the parent in custody of the child.
The Australian family law is unique in a way that it does not require the divorce applicants to prove the fault of any partner. This is called a no fault divorce. All that is required is that the partners have been separated for a period of 12 months and that there are no chances of their getting back together. It is also not necessary for a joint divorce application to be filed. Australian family law allows either partner or both jointly to file an application for divorce.
The court needs to be certain that the marriage has broken down irretrievably and that there is no hope for reconciliation at all. This requirement is particularly acute if the partners have been married for a period under two years. To ensure that the partners are not getting a divorce in haste, the court requires a certificate signed by a counseling agency to be filed with the divorce papers. This certificate attests that the partners have sought counseling as a means to seek reconciliation before applying for divorce. Similarly, if either spouse cannot be traced, the applicant can pursue the divorce application as long as they demonstrate that they have made efforts to locate the untraceable spouse.
Usually, the divorce proceedings do not take much time if there are no minor children involved. However, if the custody of children under 18 is an issue, then the applicants need to demonstrate that they have made adequate arrangements for the care of their children after the divorce. More so, unless a joint application is made by both partners, the applicant needs to be present at the hearing if there are children under 18 involved.
If either partner wishes to oppose an application of divorce filed by the spouse, he or she may file a response to the divorce application or a response to the jurisdiction if they feel that the divorce has not been filed in the right jurisdiction.
As long as you were separated for 12 months and a day – even under one roof – you are eligible for divorce, whether your husband wants the divorce or not. You can fill out the divorce application by yourself, completing all of the information about him. If you don’t know some of the answers, just write in “not known” on the form.
Sometimes there are variations of separations. Perhaps you separated under one roof for three months and then one of you moved out for another 9 months. If you lived under one roof for any part of the 12 months required prior to filing for divorce, you need to file an affidavit along with your divorce application. An affidavit is a statement made by you or another person, serving as your testimony about particular issues.
In your affidavit, you need to show that you and your spouse separated even though you were under one roof (see above) and you need to explain why you remained living in the same house. You also need to explain what the living arrangement were for any of your children who were under 18 during the separation and what government agencies you told about your separation.