How to divorce

Bearing in mind we are writing for an Australian audience we thought we should outline the steps necessary to divorce in Australia.

Often people come to see their divorce lawyers (or family lawyer as we tend to refer to them in Australia) to ask the question of how to divorce their spouse, when really what they mean is how do they sort out their property dispute. Often the question how to divorce is a long way off. It is worth noting that some people never feel the need to apply for a divorce.

Perhaps the best way to address the question of divorce is to examine what you need to do to apply for a divorce.

Firstly you have to have been separated (often people refer to a legal separation here) for at least twelve months. Do not despair if you have been separated for more than twelve months but some or all of that time has been spent under the one roof.

Legal separation implies that you have both been living separate and apart for at least twelve months.

If that is you, you can fill out the form application for divorce and sign it in front of a Justice of the peace or a lawyer. Remember you will also need a copy of your marriage certificate.

If you have been living under the one roof you will need to file an affidavit setting out the circumstances for living under the same roof together with supporting affidavit from someone who can verify your position. More on this in our next post.

Once you have completed the document (application for divorce) and signed it you need to make two copies. You then take the original with two copies to the Federal Magistrate Court (which is about to change its name to Federal Circuit Court), where you will file it. There is a fee of about five hundred and something dollars (if you are on centrelink benefits the fee is reduced to eighty something dollars). It is best you check with the court for the exact filing fee to make sure you have enough money on you to file the document.

After you have filed the document the court staff will give you back two copies, one for you and one to serve on your ex-spouse. An application for divorce has to be personally served on your ex spouse. The easiest and most cost effective way is to hire a process server. That way the documents will be handed personally to your ex-spouse and you will get an affidavit of service to file with the Court to prove service.

Your application for divorce will have a date on it, which is the date the Court will 'hear' your application. These days there is generally no need to attend at Court, unless you have children.

Your divorce becomes effective or absolute 31 days after it was heard at Court. That means that 31 days after the Registrar of the Federal Magistrate Court said the magic words "I grant the application for divorce," your divorce is legal. It is after this date you are free to re-marry.

In other posts we will discuss personal service and what to do if you disagree with anything on the application for divorce.