Applying for a divorce

# How to file a Divorce Application

To get divorced you will need to file a Divorce Application at the
Federal Circuit Court. You can access a do-it-yourself Divorce
Application Kit at
http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/forms-and-fees/court-forms/diy-kits/kit-application-for-divorce.
You can either apply for a divorce as a sole applicant, or with your
spouse as joint applicants. (For more information see, Joint
application and Sole application)

Before you can file your Application for Divorce, you will need to
sign it in the presence of a Justice of the Peace or a solicitor.
After you have signed your completed Divorce Application you will
need to file it at the Registry of the Federal Circuit Court. You
will need to present:

* Your divorce application with two photocopies
* A copy of your marriage certificate

If you are not an Australian citizen by birth or descent, you will
need to provide proof of permanent residency or citizenship (e.g.
Australian citizenship certificate, passport, visa or other proof of
permanent residency or citizenship)

If you have already filed documents with court regarding other
family law matters. If this is the case, there is no need to file
another copy, as the court will already have a copy of your marriage
certificate on file. If this is the case, you should also have
received a file number from the Court, which you should insert on the
upper right hand corner of the application.

When your divorce application is filed at the registry, they will
keep the original application. However, the two photocopies of your
application will be returned to you, stamped with the court seal. You
will also receive a file number and a date and time of a court
hearing, which will be written on the top right hand corner of your
application.

## Filing an Divorce Application electronically

You can also file your application online through the Commonwealth
Courts Portal. (http://www.comcourts.gov.au)
For more information on filing your Divorce Application
electronically, see the ‘Guide to using the Commonwealth Courts
Portal’ on the Family Courts website.
(http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/reports-and-publications/publications/ccp/guide-to-using-the-commonwealth-courts-portal)

==

Fees associated with lodging an application ==
The fee for filling your divorce application is $845, which must
be paid at time of lodging your application. You can apply for
reduced fee of $280 if
You are on a pension or have a health care card, in which case you
must file an Application for Reduction of Payment of Divorce of
Decree of Nullity- General

You are suffering financial hardship, in which case you must file
an Application for Reduction of Payment of Divorce or Decree of
Nullity- Financial Hardship

## Service by post

Service by post is an easy and cheap way to serve your spouse with
your Divorce Application but it requires your spouse’s cooperation.
If your spouse will accept service of your Divorce Application by
post, you will need to send them:

* The sealed Divorce Application (with the Notice of Application for Divorce attached to the front page)

* Any other documents you filed at the Court (except the marriage certificate)

* The brochure Marriage, Families and Separation given to you by the Court

* An Acknowledgement of Service form
* A stamped, self-addressed envelope
* A letter asking your husband to sign the Acknowledgement of

Service form and return it to you
The Acknowledgement of Service form is not an agreement with the
content of your Divorce Application, just an acknowledgement of the
fact that he has received the application and the brochure. This
signature does not need to be witnessed by a JP or a solicitor.

Once you have received the Acknowledgement of Service form back
from your spouse, you will need to complete an Affidavit of Service
by Post, indicating that you recognise your spouse’s signature. A
JP or solicitor must witness this. The witness must also complete the
attached Annexure Note. You must then, attach this to the Affidavit
of Service by Post and file them and a photocopy of each at the
Registry prior to the hearing date.

## Personal service by hand

Alternatively, you can arrange for your Divorce Application, the
Acknowledgement of Service form and the brochure to be served to your
spouse personally by hand. You cannot serve the Divorce Application
to your spouse yourself. If you can afford it, you can get a
professional process-server to do this. If you cannot afford a
process-server, you will need to find a friend or relative over the
age of 18 who is prepared to serve the Divorce Application for you.

To serve the document to your spouse, the server must identify
your spouse (either by knowing him personally or by using a
photograph or asking questions). The documents must then be handed to
your spouse and the server must ask him to sign the Acknowledgment of
Service form. If your spouse refuses to sign the form or accept the
documents, the server can put them down, making it clear that they
are serving a Divorce Application and tell your spouse when and where
the Court hearing will take place.

After serving the documents to your spouse, the server will then
need to complete an Affidavit of Service by Hand in front of a
solicitor or JP. They will also need to attach any documents that
helped to identify your spouse. The solicitor or JP will also need to
complete an Annexure Note on the Acknowledgement of Service form.

## After Serving the Documents

If your spouse signed
the Acknowledgement of Service form, and you recognise his signature
you must complete an Affidavit Proving Signature (Divorce), also
signed in front of a JP or a solicitor. If your spouse refused to
sign the Acknowledgment of Service form, it will not matter as long
as there is sufficient information in the server’s Affidavit of
Service by Hand, establishing that your spouse is in fact the person
whom they have served.

You must take a copy of all service forms and
file them at the Court Registry.

If your spouse is in Australia, you will need
to serve the Divorce Application at least 28 days before the hearing.
If your husband is overseas, the Divorce Application must be served
at least 42 days before the hearing. If you don’t serve the
documents with enough time, the registrar will be unable to hear you
case on the assigned date and it will have to be adjourned unless
your spouse is willing to give written evidence demonstrating that he
is happy for the hearing to continue regardless.

## Other means

If you can prove to the Court that you have
taken all reasonable steps to serve the documents to your spouse
without success, you can apply to the Court for either Substituted
Service or Dispensation of Service.

### Substituted Service

Allows you to serve the
application to a third party who the Court is satisfied will bring
the application to the attention of your spouse. (E.g. a relative, or
close friend)

### Dispensation of Service

Allows you to dispense
with service.

# Types of Applications

## Joint application

If you are filing a joint application with your spouse, you are
both applicants. Filing a joint application is easier than filing a
sole application because you will not need to attend court, even if
there is a child under the age of 18 involved. (For more information
on children in divorce proceedings, see Children) However, in order
to file a joint application you need the cooperation of your spouse.

## Sole application

If you lodge an application without your spouse, you will be the
applicant and your spouse will be the respondent. Applying for a
divorce alone raises a number of issues. Crucially, after filing the
documents with the Federal Circuit Court you must then arrange for
one of the sealed and stamped copies of the Divorce Application to be
served to your spouse. Proving that your spouse has been served with
a copy of the divorce application is often one of the most difficult
things to prove in a divorce proceeding. The application can be
served to your husband in two ways: by post or by hand.

# Children

If you have children under the age of 18, you will need to provide
information to the court about you and your spouse’s relationship
with every child treated as a member of the family at the time of
separation. This includes biological children as well as
stepchildren, adopted children and any other children treated as a
member of your family prior to the separation. You will need to
provide information about the time spent and communication with the
child/children, financial support, as well as the health and
education of each child.

=== What is the difference between a Divorce
Application for Divorce and Parenting Orders? ===

Giving information about whom a child lives
with and when the child sees the other parent in a Divorce
Application does not mean that the Court makes a parenting order when
it grants the divorce. You need to apply separately for parenting
orders. See the Centre’s fact sheets on Parenting Orders in the
Family Court and the Federal Circuit Court.

# Response to an Application for Divorce

Your spouse is entitled to file a Response to
Divorce. However, the only reason your spouse can use to stop your
Divorce Application from proceeding is by claiming that you have not
been separated for 12 months or that the Court does not have
jurisdiction over the divorce. (For example because you and your
spouse are not Australian citizens, or do not live in Australia)