4 big legal questions & answers you should know before divorce

Following the breakdown of a marriage, divorce can be an important step in being able to move forward.

By Joshua Wong, Lawyer at Australian Family Lawyers, Perth.

Following the breakdown of a marriage, divorce can be an important step in being able to move forward. A divorce order represents the legal termination of the parties’ marriage and permits them to marry new spouses.

In Australia, parties can apply to a Family Court for a divorce order under the Family Law Act 1975 on a no-fault basis

However, the timing of an application needs as much careful consideration as the decision to make an application. So here are a few FAQs and useful answers that you should know about, before the divorce.

Questions you might ask before divorce

How soon can I apply for a divorce order?

There are legislative limitations that prevent applications for a divorce order until a specific amount of time has passed.

An application cannot be filed where parties have been married for less than two years at the time of applying for a divorce order, without leave (permission) from the court. Parties applying in such circumstances must file a certificate stating they have considered reconciliation with assistance from a family counsellor, court-nominated individual or organisation. [Family Law Act 1975, s 44(1B), s 44(1C)]

Importantly, the court will only make a divorce order where parties have been separated for at least 12 months immediately before applying. Therefore, parties cannot apply immediately after separating and must wait for the minimum separation period. [Family Law Act 1975, s 48].

Parties living under the same roof are taken to be separated if they live separate lives.

Mother and child sitting outside of house contemplating relocation orders during the covid pandemic

When is the best time to apply for a divorce order?

The best time to apply depends on the facts of each case, including whether either party intends to marry again.

In cases where parties have separated and seek property orders, it is best to resolve property matters before applying for a divorce order. This is because parties seeking property orders after divorce, whether by commencing proceedings or applying for consent orders, must do so within 12 months from the date the divorce order takes effect, unless both parties consent to seeking property orders out of time.

By delaying an application for a divorce order, parties can give themselves more time to negotiate financial issues including property settlement and, where appropriate, spousal maintenance.

Applying for a divorce order will not preclude parties from seeking parenting orders, which can be sought in relation to a child until that child reaches 18 years of age.

How can I apply for a divorce order?

An application for a divorce order in the Federal Circuit and Family Court of Australia can be completed online via the Commonwealth Courts Portal

Similarly, an application for a divorce order in the Family Court of Western Australia can be completed online via the eCourts Portal of Western Australia.

In both courts, parties must swear or affirm an Affidavit for e-Filing Application. Parties must also include various supporting documents depending on the facts of the case.

In all cases, parties must provide a copy of their marriage certificate. If the certificate is not in English, parties must provide a certified translation and swear or affirm an Affidavit of Translation of Marriage Certificate.

If the parties were separated under the same roof for part of the minimum separation period, they must swear or affirm an affidavit asserting that they lived separate lives and provide a supporting affidavit from an independent third party (usually a relative, friend or neighbour).

If the parties were born overseas but have since obtained Australian citizenship, they may be required to provide proof of citizenship.


Family packing and going through divorce during COVID

Sole applications vs. joint applications

Parties can apply for a divorce order on their own, without the agreement of their spouse (known as a sole application), or jointly (known as a joint application or mutual divorce).

While both can result in a divorce order being made, a joint application can be prepared and dealt with more quickly.

A joint application requires that both parties swear or affirm the Affidavit for e-Filing Application. Once filed, the Court will begin considering the application and the parties are not required to attend court for the hearing of their application.

A sole application, once filed, must be served on the other party by hand, post or electronic communication. If serving by hand, the party who filed the application cannot serve the application documents on their spouse (this can be done by a friend, relative or process server who is aged 18 years or over).

If their spouse cannot be located or served with application documents, the party who filed a sole application must prepare additional documents seeking that the court order dispensation of requirements for service or ‘substituted service’.

If there are no children of the marriage, neither party is required to attend court for the hearing of a sole application.

It is open to the party responding to a sole application for a divorce order to file a ‘response to divorce’. If the responding party opposes the making of a divorce order, each party is required to attend the hearing of the application.

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