This blog details how the hearing of your divorce actually occurs and what are the inside tips and traps of the hearing process. Once again, enjoy.
The Hearing of your divorce
Once service of your divorce application has taken place (which will usually need to be 28 days prior to the hearing date) or if you are seeking at the hearing that service not be required, the court can proceed to undertake the hearing process itself. Below is what usually occurs.
Joint Application for divorce
In a joint application for divorce whether or not there are children under the age of 18 years old at the time of the application the court is prepared to deal with your divorce application; on the papers;. This means the Registrar of the Court will read your paperwork and if satisfied that all is in order make your decree of divorce. You or your solicitor will not be required to attend at the hearing. The Registrar in examining the paperwork will check important things such as the application has been filed with the correct documents, that you have been separated for more than 12 months and there is no likelihood of reconciliation. If there are children under the age of 18 the court will look at your application and scrutinise arrangements for the children in relation to their education (they like to know what school, year and how they are progressing), how the expenses for the children are shared and how they spend time with each of the parties by way of contact. Further, any children’s health issues need to be noted in the application. Provided the Court is happy with the details in your application they will order the divorce to progress. If there are any technical problems or gaps in the paperwork or there are issues that the court is not satisfied as to the children’s arrangements your divorce application will be adjourned to a later date to enable you to file further affidavit material to answer the Court’s queries. The team at Your Divorce work hard to ensure that all of the necessary questions are correctly completed, but on occasion there are some general queries usually in relation to the children, that a Court might seek further information about. This is particularly the case if there are ongoing children’s issues which is before the Court.
Individual Application where there are children under the age of 18 years
If at the time of your application there are children of the marriage or children of a prior relationship that reside with one of the parties and remain under the age of 18 years the Court requires that the Applicant spouse or their legal representative appear at the hearing. Interestingly, divorces before a Registrar are organised in blocks of about 15 divorces at a time over a period of about 1 and a half hours. Personal attendance at the hearing is required unless you or your legal representative reside more than 300 kilometers from the Court Registry. If this is the case, then you may make the application to attend the hearing by telephone and a further form is filed with the Court prior to the hearing date requesting this. It is the case the Team at Your Divorce attend all hearings by telephone and this has enabled us to keep our costs at a much lower rate than legal firms in the capital cities who will charge up to four times as much to attend a Divorce on your behalf.
Again if there are children under the age of 18 years, the team at Your Divorce will prior to the hearing prepare a short affidavit for you to sign which will indicate whether there are any changes in circumstances of the parties and in particular with respect to arrangements for the children from the time of filing your application up until the hearing date. As we can attend the hearing by telephone and you are not required to attend, this affidavit will satisfy the Court as to the care arrangements so that your Divorce application can be heard and determined on the initial hearing date without further information being sought.
What does the Court seek to ascertain for the Divorce order to be made?
As noted above in relation to a Joint divorce the court will scrutinise the paperwork and ask questions if necessary, to ascertain firstly that the application is correctly brought in relation to time limits, the proper arrangements of the children have been made and that the service of the application have been properly affected. In some cases your application may become a two-step process where it is necessary to get an order that your application be served other than by post or in person (such as by email or Facebook). If this is the case your initial hearing date will be adjourned and an order made by the court hopefully to allow the alternate service method and then once service has been affected in this method, a further affidavit conserving that this has occurred will be filed with the Court to ensure the Court is happy. The other party will also need to be notified of the adjourned hearing date.
Does your former spouse need to attend the Divorce hearing?
In simple terms the answer is no. In our experience whilst it is theoretically possible for your former spouse to attend the hearing, this virtually never occurs. In another Chapter we will deal with objecting to a Divorce (such as an arguing whether separation has been for 12 months) but aside from some technical argument your former spouse cannot object to the Divorce going through and therefore, they virtually never appear.
What does the Court order?
In getting a Divorce, the Court orders what is initially on the day called a “Decree Nisi” (this is a fancy Latin term to say this is the initial making of the order for a divorce). A month and one day later, the “Decree Absolute” (i.e. the final declaration) is made and the marriage is official at an end.
As a curiosity it is the case that between the Decree Nisi and Decree Absolute, that it is possible for the applicant’s spouse to voluntarily withdraw their application for a Divorce (for example, on the basis the parties have reconciled or got back together as a couple). In our some thirty years of experience this has only happened on one occasion.
What do I get when the Divorce Order is finally made?
After the Decree Absolute is made the final certificate of Divorce is then released and placed on the Commonwealth Portal. The team at Your Divorce will access this certificate and then provide a copy to you. This document is then your official record of your divorce and can be used for things like, reverting to your maiden name if it produced to a Government Authority such as the Department of Transport. Although further copies of your Certificate of Divorce can be obtained in the future and it is important to keep it in a safe place for potential future use, including production if you were ever to re-marry in the future.
Hopefully we have removed some of the shadows from the Divorce Hearing process. Once again if you have any queries you can contact us at firstname.lastname@example.org or visit our website for more information at www.your-divorce.com.au