How do I know when to apply for a Divorce?
There are a few steps that you need to consider before you can apply for a Divorce.
STEP 1: Can the marriage be saved?
It is imperative that you know what you are applying for when submitting an Application for Divorce. A Divorce means that there has been an irretrievable breakdown in the marriage. Basically, there is no conceivable way that the marriage could continue. A Divorce will not be granted if the Court is satisfied that cohabitation could resume, i.e. that you and your wife/husband could get back together.
STEP 2: Has there been a separation?
The parties need to have been separated for no less than 12 months. Separation amounts to the parties living separately and apart, continuously, for that period. What is interesting about determining separation, is that the parties can still live in the same house, but in separate bedrooms and conducting separate ‘day-to-day’ lives. In a broader context, separation means a departure from the state of things rather than to a particular place.
Please note that if you have been living together during the separation period as detailed above, then further Affidavits will need to be filed with the Court that speak to the fact that you were living separate lives, etc. during the period that you were still living together.
STEP 3: Has the separation been clearly communicated?
There needs to be clear agreement between the parties about the separation date. The Court will unlikely grant a Divorce if the time of separation can not be deduced accurately.
What is the Divorce Application process?
If steps 1-3 have been met, then you are able to prepare and submit your Divorce Application. The Application can be done by yourself or completed with our assistance. If you and your wife/husband are seeking the Divorce then you would be able to apply for a joint application. For this Application, the parties will be deemed as joint applicants and will both need to sign the Application. An Affidavit will also need to be signed and lodged and this can all be handled online, via the Commonwealth Courts Portal.
What if I can’t find my spouse or my spouse does not want to get divorced?
You can always apply for a sole application if your spouse is unable to be located or refuses to cooperate in the process. For this process, the sealed Divorce Application will need to be served on your husband/wife, through the engagement of a Process Server. Your husband/wife needs to be served at least 28 days before the hearing if they live in Australia, or 42 days if they live overseas. You are unable to serve the documents on your husband/wife yourself.
If you are struggling to find your spouse and do not know their location, please see our earlier blog titled ‘Can I divorce my spouse if I can’t find them?’ for further information.
Lodgement process and Commonwealth Courts Portal
The Federal Circuit Court website has a detailed list that will assist you in how and when to upload certain files when lodging your Application. Make sure that you have scanned in all the appropriate documents necessary, including your marriage certificate.
Every Divorce that is filed is unique, and if the Court requires more information from you for your Application, they will contact you. If everything goes according to plan, the Court will email you to update you as to the hearing outcome, and whether the Divorce has been granted. Once the Divorce is granted, it will take effect one month and one day after the Court hearing date.
What else do I need to consider?
There are a few issues that you will need to consider as it may impact your ability to file your Divorce online yourself:
- Have you been married for less than two years?
- Do you have children?
- Has your name changed from the name listed on your marriage certificate?
- If you haven’t finalised your property settlement matter then a time limit of 1 year to finalise the same will commence from when you are Divorced, failing which you lose your right to seek a property settlement.
If any of these issues apply to your case then you may need to seek legal advice as it can be a bit more complicated when filing for Divorce online.
Are there Court fees that I have to pay?
Generally, the filing fee of $910 will be payable directly the Court when filing your Divorce Application, however you may be eligible for a reduced fee. Some of the eligibility requirements include being in possession of a senior’s card, a health care card or if you have been granted legal aid.
In joint applications, often parties can agree to split the fee equally.
If you engage a lawyer to assist you with the process then further legal fees would apply in that regard.
How can the team at Adelaide Legal help?
Separation and Divorce can be a stressful time for the entire family. If you are struggling with the divorce application process on your own, the qualified team at Adelaide Legal will be able to assist you with any queries you may have with your matter and provide expert advice.
For further information and assistance, please call us on 08 8410 9294.