Articles

21st Nov, 2007

Can I file for a Divorce?

You can file an Application for Divorce by yourself (sole application) or you and your former spouse can file an Application for Divorce together (joint application).

You can file your Application for Divorce if you and your spouse:

regard Australia as your home and intend to live in Australia indefinitely; or
are an Australian citizen by birth, decent or by grant of Australian citizenship; or
ordinarily live in Australia and have done so for 12 months immediately before filing the divorce;
you and your former spouse have lived separate and apart for 12months and there is no reasonable likelihood of you and your former spouse resuming married life;
you and your former spouse have been married for more than two years.

You and your former spouse can be separated and continue to live under one roof. You can still file your application but it is required that you satisfy the court that:

you regard your marriage as over and that there is no reasonable likelihood of you resuming married life; and
since separation you have not represented to the outside world that you are married.

In these circumstances an Affidavit will be required to be filed with your Application.

An Affidavit is a written statement prepared by a party to the marriage or a witness. This Affidavit presents evidence to the Court about your separation. The Affidavit must be sworn or affirmed before a suitable witness (For example a Justice of the Peace, Commissioner for Declarations or Solicitor).

Two years is calculated from the date of marriage to the date of applying to the Court for a divorce.

If you and your former spouse have been married less than two years you must either:

Attend counselling with a family counsellor or nominated counsellor to discuss the possibility of reconciliation with your spouse;

If you have not attend counselling, seek permission of the Court to apply for divorce.

A counselling certificate must be completed by the Counsellor to state that he/she discussed the possibility of reconciliation with you and your spouse; or in the alternative that you invited your spouse to attend Counselling and your former spouse would not participate.

Once all requirements have been met and you are ready to file your Application for Divorce you need to file:

The original Application for Divorce plus two copies;
A copy of your marriage certificate;
Any support affidavit (if required)

There is a filing fee which must be paid at the time of filing your Application. If you hold a government concession card or experiencing financial hardship an Exemption form can be filed.

If you fear for your safety or the safety of your children you do not need to disclose your address on the Application for Divorce.

You are required to inform the Court of any pending or current or existing family violence orders, court proceedings, as they may effect the Orders the Court makes.

You should not plan to remarry until the divorce order is finalised. The Decree Nisi – Certificate of Divorce, in most cases, is issued one month and one day from the date of the Divorce Hearing.

When you receive the Decree Nisi – Certificate of Divorce you should provide this to your marriage celebrant so they may accept the Notice of Intended Marriage.

Once your Decree Nisi – Certificate of Divorce has been issued you have a 12month limitation period in which to settle outstanding property matters.

If property settlement cannot be reached before this deadline and you and your former spouse have not agreed to extend to the limitation period, an Application for Final Orders should be filed in the Court. In these circumstances we would strongly recommend that you seek independent legal advice.

Please note that an Application for Divorce is not a property settlement or orders setting out parenting orders. This Application legally terminates your marriage.

Should you have any queries please do not hesitate to contact one of our friendly staff members.