Things to consider before divorce in Australia: Your questions answered.

By 22 October, 2018Divorce
divorce application vic, qld, wa, sa

As we have outlined in a number of previous blogs the Your Divorce divorce system is straight forward, time convenient and minimises your costs of finalising the marriage. However, sometimes there are tricky divorce questions that make you unsure whether you can proceed with the divorce.

In this article, we endeavour to clarify some of the most common Divorce Questions in Australia.

Common Divorce Questions in Australia

Am I able to avoid a Court Filing Fee?

The Federal Government has a set filing fee for an application for divorce. This is $910.00 if you are not the holder of a Health or other benefit card and $305.00 if you are. To get divorced, unfortunately, we are unable to avoid this fee.

What if I have lost my marriage certificate?

Don’t panic, help is at hand. Provided you are able to identify where it is likely that you were married we will be able to contact the relevant Registry of Births Deaths & Marriages to obtain another copy. The cost of obtaining a copy is around $60.00 and will take a little while however, we are able to overcome this issue so that your divorce application can proceed.

If I was married overseas can I get divorced in Australia?

The answer is yes you can if you have taken Australian citizenship, have permanent residence or intend for Australia to be your permanent home. If however, your marriage certificate is in a different language it may be necessary to have it translated into English to be filed with your divorce application. If you have lost your overseas marriage certificate we will do our best to assist you in contacting your home country to obtain another copy.

I believe my spouse has moved interstate or overseas and I don’t know where they are. Will this stop my divorce from proceeding?

This does happen from time to time. Firstly, we will need to establish whether there are any other friends, family or children of the relationship who can bring the divorce application to their attention even though you do not personally know where they are. If such a person exists then it may be necessary to serve them with the divorce application. If however there is simply no-one who knows where your spouse is then you are able to apply for what is called a dispensation of service. In other words, the Court accepting that you have taken all reasonable steps to identify their location and then proceeding with the divorce once this has been established.

I know where my spouse lives but he is being difficult in accepting service. Will this delay my application?

Generally, an application has to be served 28 days prior to the divorce hearing. If your spouse will not accept service and acknowledge same in writing then personal service is usually required to be affected. We have had unusual cases where the spouse lives at a property or unit complex which is inaccessible and they refuse to personally accept service. Again. if sufficient evidence is given of all reasonable attempts to bring the document to your spouse’s attention the divorce will usually be in a position to proceed. Occasionally an adjournment of your divorce hearing may be needed to ensure that all reasonable steps have been undertaken to cover this service aspect.

I’m confused – We separated in June of one year but got back together for 2 months 6 months later. How long do I have to wait until I can get divorced?

There are several rules that relate to periods of cohabitation prior to the ‘final’ final separation. Broadly speaking, if periods of cohabitation do not exceed 3 months in any 12 month period then once you have had actually had 12 months of separation you are in a position to apply for your divorce (in this example 15 months all up). If however, the cohabitation exceeds 3 months then it may be necessary to wait for a further period after that to ensure that the 12 month time limit is reached.

My spouse and I had to live in the same house after we separated in different bedrooms and we cooked our own meals. Does this class as separation?

Separation under the one roof can once again be a little bit tricky. We will ask you all the necessary divorce questions to establish whether in fact you and your spouse were living separately and apart including for example, separate living arrangements, cooking arrangements and financial arrangements. There can be a fine line as to what constitutes living separately and apart and we will ensure to confirm what the exact situation is with your assistance.

I want the satisfaction of personally handing my divorce application to my spouse. Is this allowed?

The general answer is no. You are not able to personally serve your own divorce paperwork and prove that service has been properly affected as you are not able to swear the Affidavit of Service of the Application. If of course your husband voluntary signs the Acknowledgement of Service then that will not be an issue but if he refuses to do so you will need another service attempt with an independent third party handing the documents over.

We broke up in the first 6 months following our marriage. When can I apply for a divorce?

To apply for a divorce you must be separated for a period of 12 months. If however, that 12 months ends within the first 2 years of marriage then prior to filing your application for divorce there is a further step of showing that you have taken all reasonable steps to consider the viability of the marriage. This will usually require further Affidavit material and for you to potentially obtain counselling advice as to the ending of the relationship. In our view, unless it is absolutely necessary we would usually suggest that you wait for the first 2 years of marriage to expire prior to making the Application. This will save all of the other steps mentioned.

Conclusion: We’re here to help with your divorce questions

Getting divorced always raises different questions. The key is knowing the right answers at the right time. Your Divorce is here to ensure that those answers to your divorce questions can be given. Even if you don’t immediately commence your application but have a query any inquiry can be directed to our Help@YourDivorce.com.au by email to sort out any preliminary issues prior to filing your application thereafter. Just remember we are here to help.