Understanding The Divorce Process
Invariably, divorce is a traumatic experience and with little doubt, one of life’s most stressful events. Being a highly-charged emotional event, it can become so easy for people to be overwhelmed in all the emotion that can cloud a person’s ability to consider fundamental practical and legal issues that are significant, long-lasting and wide-reaching.
Accordingly, seeking legal advice early in the process is very important.
Frequently Asked Questions
When can I obtain a divorce?
Only one party has to consider that the marriage has broken down irretrievably to establish a date of separation. You need to be separated for a period of 12 months prior to the date of filing the Divorce Application in the Federal Circuit and Family Court.
What is the earliest time I can file for divorce?
You are not able to file an Application until at least one year and one day has expired since the date of your separation.
Is it necessary to register or record evidence of the date of separation?
If the date of separation is disputed then the party contesting the date will need to file a Response to the Application for Divorce before the date of hearing.
Can I still get a divorce if I have been living separately and apart from my spouse, but in the same residence and under the same roof?
Yes, provided the Court is satisfied that there has been a complete breakdown of the marriage and that during the relevant period, the parties have been living in the same residence although separate and apart from one another.
This often requires evidence of the parties living in separate bedrooms, abstaining from sexual relations, preparing their own separate meals and doing their own laundry and ironing.
It is necessary to prepare Affidavit evidence (the Court prefers evidence of someone independent to the relationship, e.g. neighbour or friend, as well as by the Applicant) if you want to apply for a divorce if you have lived at the same residence as your spousal during the 12 month separation period. This will involve additional time and therefore expense in your Application.
If I have to wait 12 months before I can file for divorce can I attempt to resolve the financial and children’s matters, once the separation has taken place?
Yes, you can proceed to address these issues. You should talk with us to ascertain more information in relation to how to go about this.
What if I can’t find the other party and am unable to serve the divorce documents?
If you have undertaken a genuine attempt to seek out and locate the other party but have failed to locate them, it is possible to approach the Court and seek an Order for either:
(a) Substituted service (serving them via email and/or other electronic means or through a third party); or alternatively
(b) Dispensation of service of the Application upon the Respondent.
These steps are in addition to the steps normally required in respect to the Divorce Application and will involve some additional costs.
How long is it before I can remarry after my divorce is granted?
Once the Divorce Order is made by the Court it will become absolute one month from the date when the Divorce Order is made. Thereafter you are at liberty to remarry.
If there exists some element of urgency associated with your remarriage then it is possible to seek out and obtain the other party’s consent to the Application being listed with priority on the basis that the other party provides a written acknowledgment that they have no objection to the divorce being listed on short notice given they have no intention of filing a Response objecting to the Application.
If that consent can be obtained from the other party a request to the Registry to provide an urgent date can be made at the time when the Application is filed. The request should be supported by a form of written consent signed by the other party. At the hearing of the Divorce Application, it is possible to request the Court to shorten the time for the Divorce Order to become absolute in order to meet any impending deadlines regarding arrangements that may have been made for remarriage.
What are the costs of an undefended divorce?
Our firm charges $900 professional fees (plus GST and outlays) for an Application for Divorce. If there are complicating factors as mentioned above this may incur an additional fee which we will discuss with you upon receipt of your instructions.
There usual outlays associated with a divorce are as follows:-
1. Filing fee – for Application for Divorce currently $900;
2. Service fees – if it is necessary to personally serve the Respondent with the Application for Divorce. The cost will vary depending on urgency and difficulties and ranges anywhere from $90 to $300 (plus GST);
3. Obtaining Marriage Certificate and translating it (if required).