Obtaining a Divorce Application
If you have separated or are contemplating separation, the process of divorce will be front of mind. There are of course other much more significant things that occur following separation than the divorce process. Yes, it’s of course important, but ensure you’re well aware of all other things that need to be covered. Book a free, initial consultation with one of our mediators or family lawyers. We are Australia-wide and also do work internationally.
When filing for divorce in Australia, you must first satisfy a variety of eligibility requirements before you can submit your divorce application.
The Divorce Application is a legally binding document that must be signed by both parties to be effective.
A divorce application in Australia must be filed using an Application for Divorce form, which may be found on the government’s website. It is possible to submit this application form using the Commonwealth Courts Portal, which is available online. As an alternative, you can download the form from the Federal Circuit and Family Court of Australia website and manually fill in the fields with your information using a computer keyboard or by handwriting, as described above.
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It is necessary to sign the Divorce Application form by swearing or verifying it.
Once the Application for Divorce form has been properly filled and signed by both parties, it must be sworn or affirmed in the presence of a lawyer or a Justice of the Peace. If you choose an alternative method, you can swear or affirm the form in the presence of another individual who has been authorised to witness your signature on the form as an alternative option.
That which is considered to be a “other approved person” who is entitled to witness your signature on the Application for Divorce form will be governed by regulations specific to the state or territory in which you wish to have your signature witnessed. Due to the fact that the proper oaths and affirmations may change from one state or territory to another, this is the case. You should study your state or territorial legislation before designating someone to act as a witness to your signature on the document in light of these considerations.
If I’m travelling overseas at the time of submitting my divorce application and I need it witnessed, how do I go about getting it done?
If you are residing outside of the United States, you can have your signature on your Application for Divorce form witnessed by a Notary Public, an Australian Diplomatic Officer or Australian Consular Officer, or an employee of the Australian Trade Commission if you are not residing in the United States.
Divorce petitions, as well as any supporting papers, must be submitted with the proper judicial system.
After you’ve completed and sworn or affirmed the Application for Divorce form, you must send it to a Family Law Registry together with any other essential paperwork. You must also provide two duplicates of each document to the Family Law Registry. Additionally, you’ll need to transmit a duplicate of your marriage certificate, which does not need to be sworn, affirmed, or even certified, as well as a copy of your marriage licence. If you’ve been married to your spouse for less than two years at the time of filing for divorce, you’ll also need to bring a counselling certificate with you. Following that, all of the paperwork will be filed to the Family Law Registry.
If you want to find out how long it takes to get a divorce, this article is useful.
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My partner must agree to the divorce, but is this a requirement?
It is not necessary for you to have your spouse’s consent in order to file for divorce in order to do so. Even if this is true, the outcome of your application will be decided by whether or not your spouse agrees to cooperate with you in connection with the application at the time of submission. Whether or not you were able to locate your spouse at the time of completing the papers would also have an impact on how quickly your application would be processed. You have two alternatives when it comes to filing your application: you may file a single application by yourself, or you can file a joint application with your spouse.
Applications for one’s own use as well as applications for two or more individuals
A single application would be submitted if your spouse refused to cooperate with you in connection with the application or if you were unable to find your spouse. If you were to file the application as a lone applicant, you would prepare and file it on your own behalf, with your spouse serving as the respondent. An alternative option is to submit a joint application with the court if your spouse agrees to divorce and cooperates with you in the preparation and filing of the application. As a result, you and your spouse would be deemed joint applicants if this is the case.
What happens after you’ve submitted your application is up to you.
When you file your application at the Family Law Registry, you will be assigned a file number by the court, as well as an appointment time and date for your hearing. A combined application filed by you and your spouse will result in the court retaining the original document and providing your spouse with a sealed duplicate of the original document, if applicable. With an uncontested divorce, you will receive two sealed copies of the application, and you will be required to serve one of these copies on your husband, in addition to a court-provided information booklet. If you file an uncontested divorce, you will receive two sealed copies of the application.
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In order to be legal, divorce petitions must be served on the other party.
A joint application submitted with your spouse is not subject to the requirement to serve the application on him or her as a condition of filing the application. However, if you are filing as a solo applicant, you must serve this application on your spouse at least 28 days before the hearing if your spouse resides in Australia, or 42 days if your spouse resides outside of Australia, before the hearing may take place. In order to serve the application on your spouse, you can do it either by the mail or by having a third party serve the documentation on your behalf, as you are not authorised to serve the documents yourself.
What happens if I am unable to locate my spouse in order to serve the application on him or her properly?
It is necessary to have the address of your spouse in order for the application to be sent. If you are unable to locate or identify the location of your spouse, this can be a major source of stress for you. It is possible that you will be able to get an order to either disallow service or enable alternative service if you are unable to contact your spouse despite taking all reasonable steps to do so.
In the event that I am unable to attend the court hearing in person, what should I do in this situation?
It is possible to request to participate in a court hearing via telephone instead of in person if you consider that attendance would be problematic for you.
What are the possibilities that I will be qualified for a reduced filing fee than I currently pay?
Providing specified supporting paperwork to the court will be required if you wish to be considered for a reduced filing fee for your divorce application. Documentary evidence includes a variety of cards that you may have, such as your health care identification card or your pensioner concession card, that serve as proof of your identity. This documentation may also be used to prove that you have been given Legal Aid or that you are receiving funding for a variety of other purposes, such as youth allowance, Austudy, or ABSTUDY. Additional information may include that you are under the age of 18, a prison inmate, or otherwise confined in a public facility under legal supervision, among other things.
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What is the estimated cost of going through with a divorce filing?
Generally, the Federal Circuit and Family Court of Australia will levy a filing fee of $910 for each divorce application that is submitted in the court. It’s possible that you’ll be eligible for a reduced filing fee, which would be $305 instead of the typical $495, under certain circumstances. The court would require specified types of recorded proof when you file for divorce in order to be eligible for a reduced filing fee. If you are qualified, you would need to produce these pieces of documentation to the court. More information may be found on the website. If you are applying as a solitary candidate, this proof would need to be produced by you alone, and if you and your spouse are applying as a pair, this proof would need to be provided by both of you and your spouse. If you can establish that you are suffering from financial hardship, you may also be entitled to have the filing fee waived.
And what happens if the name I’m presently using is different from the name I was using during or before to my marriage, for example?
The court will need you to file an affidavit stating why your current name is different from your married or maiden name if you are using your married or maiden name for the first time.
What happens if one or both of the spouses had children from a prior relationship?
The court must be made aware of the facts of the arrangements established for children if there are children from a previous marriage in order to avoid a divorce. Specifics such as the children’s housing and care arrangements, as well as information regarding their schooling and health, would be included in this category. Aside from that, the specifications would include information on how many contacts the child would have with each parent, and, if applicable, the reasons for the child having limited or no contact with a parent, if that is the case with that parent. Aside from that, the details would include the provision of financial aid by either parent, as well as the reasons for the non-provision of financial assistance by a parent, if applicable.
The point is, who would be considered a child of the union in this scenario?
As well as any children born to you and your spouse during the marriage, any children born before to the marriage or after the divorce would be considered “children of the marriage.” In addition, any children born previous to your separation are included in this definition. This description also includes any adopted children you and your spouse have together, as well as any stepchildren or foster children who were members of your family previous to the separation.
What Should You Do Now?
At Mediations Australia, we have a team of family lawyers and mediators who can assist you in Canberra, Perth, Adelaide, Melbourne and all other locations in Australia. We also do international family law matters