For the majority of separated couples, applying for a Divorce Certificate is the final step in having their marriage formally recognised as dissolved.
To apply for a Divorce Certificate, you must be able to show you have been separated in excess of 12 months and there is no reasonable likelihood that you will resume your marriage at a later date. You must also be an Australian Citizen (either by birth or descent), or have an intention to live permanently in Australia or have lived continuously in Australia for more than a 12 month period.
Divorce Applications can be made by one party or as a joint application by both parties. Depending on your circumstances, you may choose to do it yourself, or you may seek legal assistance in lodging the application and attending the divorce hearing.
To simplify this process, we have outlined 5 steps on how to apply for a Divorce Certificate:
Step 1: Fill Out and Lodge the Divorce Application Form
Step 1 is to complete an application form. You can find these forms on the Federal Circuit Court website. You may choose to complete the application online or download and complete in writing. Be sure to read the instructions on the form carefully with regards to how to complete the form. There is an $865 filing fee to lodge this application, however, the court will in some circumstances reduce this fee if you meet the hardship requirements as outlined on their website.
Step 2: Obtain a Copy of Your Marriage Certificate
After completing the application form, you must attach a copy of your marriage certificate to the Divorce Application. If for some reason you don’t have a copy of your marriage certificate, you can apply to the Births, Deaths and Marriages Registry for a certified copy. If lodging your application online you will need to upload your marriage certificate at the time you are lodging your application. Once lodged, you will receive a ‘sealed copy’ of the Application which then needs to be served on your former spouse.
Step 3: Service of the Application Form
If the divorce application is being made jointly, then no service is required and the sealed application form can simply be lodged at the Federal Circuit Court together, along with the required supporting documents.
However, if the Application is being made by one party to the marriage only, the application form will need to be served on the other side. Correct service of the application is a very important step to applying for your Divorce Certificate, and if the proper process is not followed you may find that the Divorce application will be rejected further down the track.
For proper service to have been complied with, you must serve a copy of the sealed application form together with a brochure which explains the separation process. This brochure can be found on the Federal Circuit Court website.
Service of these documents can be in person or it can be by post, but they MUST be served at least 28 days before the hearing date for your divorce application. You must not be the person to serve the documents if effecting service by hand, rather you need to have another person who is over the age of 18 years to serve the documents. You may also opt to pay a process server to effect service on your behalf.
Once served, a sworn affidavit of service will need to be completed and filed with the Court. A template of this Affidavit can be found on the Federal Circuit Court website and it will need to be witnessed by the appropriately qualified person. Again, the Federal Circuit Court website provides instructions on completing and witnessing this form.
If you are unable to locate your former spouse to effect proper service, there is information on the Federal Circuit Court website regarding obtaining an order to dispense with service or applying for an order for substituted service instead.
Step 4: Obtaining an Affidavit of Acknowledgement of Service
When the sealed application form has been served, your former spouse will need to sign an Affidavit of Acknowledgement of Service. If the documents have been served in person, this can be completed at the time of service. There is a requirement that the signature is verified so it may assist in having someone who knows your former spouse to serve the documents. If effecting service by post, your former spouse will need to sign this Acknowledgement and send it back to you.
Once this Acknowledgement is received, this form, together with the Affidavit of Service can be lodged with the Court either online or in person at the Court Registry.
Step 5: The Divorce Hearing
If there are no minor children of the marriage, then there is no requirement for you or your spouse to appear at the Divorce Hearing, unless of course the divorce is being contested by one of the parties. So long as proper service has been affected and all necessary documents have been filed with the Court, the Federal Magistrate will approve your divorce application and you will receive a certified copy of your divorce certificate from the Court.
If there are children of the marriage under the age of 18, either the applicant, the respondent or their solicitors will need to appear at the divorce hearing and they will need to satisfy the court that proper arrangements have been made in regards to contact and care for the children, prior to the Divorce Application being approved.
So whilst the process of applying for a Divorce Certificate can be made on your own behalf, it may be worth consulting with a family lawyer to ensure that the process and documents are completed properly.
If you would like to book a Quick Match, please follow the links on the Legally Yours website.
This article is written by Karen Finch and was first published on the Legally Yours website.
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to practising lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Legally Yours Pty Ltd accepts or assumes responsibility, or has any liability, to any person in respect of this article.