When to Apply for Divorce
The application for dissolution of marriage (that is, divorce) cannot be filed in a Registry of the Family Court of Australia or the Federal Circuit Court until the 12 month separation period is over.
Who can Apply?
Either party can apply for divorce. It does not matter who left the marriage, or whether the other party does not want a divorce. A Joint Application may also be made by both parties together. Before the court can hear the application, there must be proof that the parties have some link with Australia.
The husband or wife must, at the date of application, be:
- an Australian citizen;
- domiciled in Australia – which means that they have made Australia a permanent home. It does not matter that they are living temporarily overseas; or
- ordinarily resident in Australia, and have been living here for 12 months before the application is made. It does not matter that they are only temporarily living in Australia.
How to Apply
The person applying for divorce (the applicant) must fill out an Application for Divorce (called a ‘Form 4’ and available from Family Court Registries). This is a ‘do-it-yourself’ kit. It must be signed and witnessed by a Justice of the Peace or a solicitor. The completed Form 4 and two copies of it (good photocopies are acceptable) must be taken to the Registry for filing and sealing.
A copy of the marriage certificate must also be filed. If the original certificate is not available, certified copies are available from the Registrar of Marriages in the State or Territory in which the marriage took place.
Where the certificate is not in English, a translation should be filed.
A filing fee for the divorce application must be paid although this can be waived where there would be financial hardship and an application for ‘Exemption from Payment of Court Fees’ is made. Where the applicant is on a pension, the filing fee will not usually have to be paid.
Parties can now apply jointly for a divorce. This change in the law takes divorce a step further away from the old ‘adversary’ approach and allows couples who agree that their marriage is over to dissolve it together. If the parties can agree about dissolution this can be an important and helpful step towards agreeing about the range of other matters (children’s residence, property and so on) that have to be sorted out.
Joint applications have a number of practical benefits. There is no need to go through the legal formalities of serving the documents. Parties can ask that the usual waiting time of 28 days between the date of filing and hearing be shortened. Sometimes the court can cut it down to two or three weeks depending on its workload.
A word of caution: To obtain a remission of the filing fee, both applicants will need to have financial difficulties. If one is working and the other on a pension the fee may still have to be paid.