O'Sullivan Davies Lawyers

In Australia, the Family Law Act 1975 (Cth) deals with the law of marriage and divorce. The Act intends to enable separation with as few problems as possible through reaching a mutually-beneficial agreement. Divorce law pertains only to the legal bonds between a couple; maintenance, property or children of the marriage are found elsewhere in theFamily Law Act 1975. 

Grounds for Divorce

Irretrievable breakdown of marriage is the only grounds for divorce in Australia. In order to prove this is the case, the parties must have lived separately from each other for at least 12 months. This period begins on the day after one (or both) of the parties intends to end the marriage, and communicates it to the other.

There must also be no reasonable likelihood of the parties reconciling. After the 12 month period has passed, and the parties are not reasonably likely to reconcile, one or both may apply for divorce. 

Making an application for divorce

Divorce applications should be made to the Federal Magistrates Court, and can be done at any time following the separation period. For the court to have jurisdiction over the proceedings, either the husband or wife must be an Australian resident or citizen, or living in Australia.

Either the husband or wife can apply; whether or not the other wants to get divorced is irrelevant. Alternatively, the parties may make a joint application. To apply for a divorce in the Federal Magistrates Court, the husband, wife or both must: 

  • File a complete application form (filled out by hand) and two copies;
  • Pay a filing fee. If the applicant suffers proven financial hardship, they may also file an application for a reduced fee. There is also an option of deferring payment, which is best for applicants seeking a reduced fee; getting the fee back after paying it can be extremely tricky;
  • Provide the marriage certificate. If there is no marriage certificate, the applicant must file an affidavit containing details such as the wedding vows, witnesses or promises of commitment. If the wedding took place overseas, it must be evidenced by an official extract from the foreign registry of marriages. If this is not in English, it must be accompanied by a certified translation and an affidavit stating the person who did the translating was competent to do so.

Serving the application

After filing, the court keeps the original application and returns the copies to the applicant. One is kept by them, and the other is served on the recipient. The husband or wife being divorced must be served at least 28 days prior to the divorce hearing. If the application for divorce is a joint one, there is no need to serve the document. 

Personal Service

The divorce application can be served to the husband or wife by any person over 18, except for the applicant for divorce. For example, a friend or relative may serve the document. A professional process server may also do so.

It is important to know that the document should be handed directly to the respondent; leaving them with someone else to hand them on is insufficient. If the server has not previously met the person they are serving, they should confirm their identity by asking about that person’s full name, the full name of the applicant for divorce, and the date and place of their marriage. Giving the server a picture of the respondent is a good idea.

Sometimes people really don’t want to get divorced; in the case that the respondent feels this way and won’t take the documents, they can be put down in the respondent’s presence. The server should then say “Your husband or wife is seeking a divorce from you. These are the papers and the Federal Magistrates Court will hear the application on (the date of the hearing)”.

The server must then fill out an affidavit of service which is signed and sworn or affirmed in front of a justice of the peace or solicitor. Alternatively, a more convenient way is the respondent signing an acknowledgement of service.  

Postal Service

Alternatively, the applicant can mail the document and acknowledgment of service for their soon-to-be-ex-husband or wife, complete with a postage-paid envelope. This method is not advised if it is unlikely the respondent will comply with the returning protocol.

Overseas Service

If Australia has an agreement with the country in question about civil proceedings, the Family Court registrar will send the documents to the relevant country. This process usually takes upwards of nine months, and tends to be expensive, particularly if translation is involved.

If the country is not party to any relevant conventions, service must either be by a process server or post.   

Service is often the most difficult practicality of divorce proceedings; if possible, it is always best to apply for a divorce jointly so that the requirement of service is dispensed with.

Contact Us

O'Sullivan Davies Lawyers
Level 27,  197 St Georges Tce
Perth WA 6000

Phone : +61 8 9426 4711

Fax : +61 8 9426 4722

info@osullivandavies.com.au

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