Since 2021, all applications for divorce are required to be lodged online through the Commonwealth Courts Portal. Each party needs to set up their own account on the portal via: www.comcourts.gov.au. If you have any issues, phone the ComCourts helpline on: 1300 352 000 and a client service officer will talk you through the process and check that your account and login are working properly. Read on below to gain some divorce legal advice through some commonly asked questions.
Who can file an Application for Divorce?
Any party to a marriage who has been separated from their spouse for at least 12 months can apply for a Divorce. The parties can still be living under the one roof, as long as at least one of the parties has communicated to the other party that the relationship is at an end. If there is a dispute about the date of the end of the relationship or whether the relationship has ended, the Court may consider a range of factors, before making a determination. Some factors that are often taken into account include:
- the public status of the relationship – for example, whether there is evidence that one or both parties have told friends, family and/or government agencies about the separation?
- the performance of domestic duties after separation – whether the parties have continued to perform domestic duties for each other after separation and whether this is reasonable in the circumstances of their separation?
- the existence of a sexual relationship – whether the parties continued to have a sexual relationship after separation and if so, on what terms?
- the separation of finances – whether the parties have continued to maintain joint accounts and if so, the purposes of such accounts (eg if they both continue to contribute to the mortgage repayments pending sale of the matrimonial home)
- the arrangements for the care of children post-separation – whether the parties have negotiated parenting arrangements that reflect their separation
Do both parties need to agree to apply for a divorce?
A Divorce Application can either be filed as a Joint Application for Divorce by consent of both parties or as a unilateral Application for Divorce filed by only one of the parties. If a solo Application for Divorce is filed, the consent of the other party is not required, but they do need to be personally served with a copy of the Application for Divorce and then an Affidavit of Service, setting out proof of how they were served, has to be filed before the first mention of the Divorce Application by the Court. The Application for Divorce has to include a certified copy of your original Marriage Certificate and if this is in another language, it should also include a certified copy of a translation of the original Marriage Certificate. In addition, you need to include copies of any existing family law Orders or AVO’s.
How much does it cost to file an Application for Divorce?
Divorce filing fees are available on the Court website via: www.fcfcoa.gov.au. As at 31 May 2022, the filing fees that apply were: $940 for a solo Application for Divorce, $170 for a Joint Application for Divorce and a reduced fee of $310 if a party filing a solo Application, has a Health Care Card, Centrelink Benefit or Pension and/or is otherwise eligible for a concession.
What is the process of applying for a divorce?
Once you have been separated from your spouse for at least 12 months and you have decided that you want to get divorced, the first step is to complete an Application for Divorce. The application forms can be downloaded from the Court website: www.fcfcoa.gov.au. For a Joint Application, each party’s side of the form has to be separately signed and witnessed. Once the form has been completed, it has to be scanned and uploaded to the ComCourts Portal, together with a copy of the Marriage Certificate and any previous family law Orders.
If the upload is successful, an electronic transaction receipt will be emailed to the lodging party and a sealed copy of the Application will be available for download by either party as long as they have a ComCourts account and login details. The sealed Application will have a Court file number in the box in the top right hand corner on the first page of the form. This box will also show the address of the Court in which the Application has been listed and the date of the first return or first mention of the Application by the Court. In the Hunter Region, Applications for Divorce are listed on Tuesdays and heard by a Judicial Registrar in the Newcastle Local Court on Hunter St, just up from the corner of Hunter and Darby Sts, Newcastle.
At the first return of the Application for Divorce, the Judicial Registrar will check the Application form to ensure that it has been completed properly, that the required documents have been provided and that the other party has been properly served. If all the paperwork is in Order, the Judicial Registrar will set a date for the Divorce to take effect. This is usually at least one month and one day after the first return. Once the Divorce has been granted, a sealed copy of the Decree Nisi or Certificate of Divorce will be available for download from the ComCourts portal. Depending on the capacity of the Registry where the divorce has been filed, it can take between four (4) weeks and twelve (12) weeks to appear on the ComCourts portal. However if you have an urgent need for your Divorce Certificate to be issued, an oral application can be made for the application to be expedited at the first return.
What if I don’t want to do my Application for Divorce by myself?
At the Law Office of Conrad Curry, we understand that a lot of our clients are time poor or that they would prefer to hand over the Divorce Application to a lawyer rather than having to fiddle around with paperwork or deal with their ex-spouse. At Conrad Curry Law, we are always happy to assist clients to complete, file and serve their Divorce Applications. Or simply provide legal advice on divorce for you moving forward.
Am I required to attend the hearing of my Application for Divorce?
Parties are not required to attend the hearing of their Application for Divorce. However, it is recommended that you do attend the first mention to ensure that there are no procedural issues preventing your Divorce Application from being considered. If you do not attend and there is a procedural issue, a Requisition will be issued by the Court and you may be requested to provide missing documents or further information in response to ‘requisitions’ or questions set out by the Registrar, by a certain date. If you are unable to attend or do not wish to attend your Divorce Hearing, one of our family lawyers at the Law Office of Conrad Curry, can appear on your behalf.
How do I serve the other party with my Application for Divorce?
If you are doing a solo Application for Divorce, you are required to serve it on the other party. This is a formal process. Under the Family Law Act 1975 (Cth), parties are not allowed to personally serve a Divorce Application on their estranged spouse. Due to the risk that the other party might deny that they have been served or try to avoid service, it is recommended that you arrange for a professional process server to serve the other party. The Sheriff of the Local Court can serve Divorce Applications, but they usually give priority to serving documents that the Local Court has Ordered them to be serve, so sometimes the Sheriff is not able to effect service in time. There are also a range of commercial process servers that you can pay to effect service on the other party and provide you with an Affidavit of Service. You can expect to pay between $77 and $220 for either a Local Court Sheriff or a professional process server to formally serve the other party with your Divorce Application. Once the other party has been served, the person who has served them, needs to complete an Affidavit of Service that sets out the date, time, location and identity of the person served. This should then be uploaded to the ComCourts Portal before the first return date so that the Court has evidence of compliance with the Family Law Rules about service. If the other party refuses to accept the documents being served on them, the process server can leave them at their feet and set this evidence out in the Affidavit of Service. If that happens, it is usually safer to also send the other party a copy of your Application for Divorce via registered post, ordinary post, via email and to the address of a close family member. If the Court cannot be satisfied that the other party is aware of the Application for Divorce they may adjourn the Application and require you to effect “substituted service” by serving a close family member or the employer of the other party.
What is the effect of a Divorce?
Once your divorce has been granted, you are free to re-marry. You should also be aware that any previous Will made by you or your former spouse will be invalidated from the date of the Divorce. At the Law Office of Conrad Curry, we can plan an appointment for you to do a new Will so that it occurs immediately after your Divorce takes effect to ensure that you are not left without a valid Will. Finally, keep in mind, that you have a time limit of twelve (12) months following your divorce, to file any required applications for Property Orders. This does not mean that you can’t negotiate an agreed property division, just that if there is a dispute about the division of marital property, you need to file your Application for Property Orders within twelve (12) months of the Divorce taking effect.
If you’d like some further divorce legal advice, get in contact with the team today.