Divorce Q and A

Question 1- Is it possible for a person who was married overseas and has an overseas marriage certificate to make an Application for Divorce in Australia?

  • Yes, a person who was married overseas may still apply for a Divorce in Australia. It does not matter where the marriage took place.
  • For instance, if the marriage occurred in India that does not mean that the Application for Divorce must be made in India.
  • If, however, the other spouse is residing overseas, then they must be served with the Application for Divorce papers in accordance with the rules of the Australian Courts.

Question 2 – When can a person make an Application for Divorce and what are the legal requirements?

  • The first major requirement is that the person making the Application for Divorce must have jurisdiction in this country; that is technical language to say that the person ordinarily resides in Australia and therefore the Australian Courts are able to grant the Application for Divorce.
  • It should be noted that the person seeking the Divorce need not be an Australian citizen or Australian resident but merely that the Applicant has lived in Australia for a minimum period of 12 months before filing the application.
  • Another basis upon which the Applicant may be within the jurisdiction of the Australian Court is if they regard Australia as their home and intends to live indefinitely in Australia.
  • The requirements for jurisdiction are therefore not as onerous as one might imagine. For instance, most overseas students would have migrated to Australia with the precise intention of making Australia their home and would therefore have the intention of making an application for a Bridging Visa or similar Visa to continue to reside in Australia.
  • To summarise, all that is required for the Court to have jurisdiction to grant the Divorce is that the Applicant intends to reside in Australia.

Question 3 – Are there any other requirements?

  • The Applicant must be in a position to allege that he or she has been separated from the spouse for at least a period of 12 months.
  • It is important to note that an Application for Divorce may only be made after a period of 12 months of separation has elapsed.
  • The definition of “separation” is rather wide; it is possible for a person to secure a Divorce even though the spouses have continued to reside together ‘under the one roof. Ideally, however, it is best for the spouses to have been separated physically in that they reside in separate homes. This is because ‘separation under one roof requires further evidentiary requirements to indicate genuine separation.

Question 4 – Are there any special requirements in order for the parties to secure Divorce when living separately under one roof?

  • Yes, the person has to swear an Affidavit swearing to the effect that the spouses have been living separately but under one roof.
  • In instances where the spouses have continued to live together in the same home, it must be proven that the spouses have ceased to live together in a marital sense. Evidence that supports ‘separation’ includes, but is not limited to:
    1. The spouses must have ceased sexual relations which may be evidenced, for example, that the spouses have lived in separate rooms.
    2. The spouses may have separate financial arrangements.
    3. Emotional/financial/general support between the spouses is negligible if not non-existent entirely. That is the spouses have generally looked after their own affairs such as cooking, cleaning, washing etc
    4. Other evidence to demonstrate that the general interaction between the spouses during the course of the 12-month separation ‘under one roof is limited to a purely platonic (nonsexual, merely friendly) relationship
  • Ultimately, the decision whether the separation is genuine is one for the Court and it should be noted that acts which are contrary to the matters listed above may not necessarily prevent a person from seeking to secure Divorce whilst living under one roof. Obviously, however, the greater the evidence to demonstrate genuine separation, the more likely the Court will decide that the requirement of 12 months of separation has been satisfied

Question 5 – What if the marriage has only been very short?

  • The threshold for an uncomplicated Divorce Application is a marriage of minimum two-years of duration.
  • If, however, the parties have been married for less than 2 years, they may still secure a Divorce, but are faced with additional legal requirements.
  • For spouses to apply for a Divorce from a marriage of less than two years’ length, both spouses are required to attend counseling from an authorized counselor and secure a certificate from the counselor that they have attempted reconciliation.
  • If it is not practicable to attend counseling, for instance where one spouse resides overseas whilst the other spouse resides in Australia, or otherwise that the circumstances of the separation are such that any attempt to counseling would be futile, then the Court has the discretion to grant an Order for Divorce without the need for the provision of a counseling certificate.
  • If an exemption is sought in relation to this legal requirement, then an Affidavit will have to be sworn to establish the exceptional circumstances.

Question 6 – Do both parties have to reside in Australia and does the Divorce application have to be served on the spouse?

  • No. Both parties do not have to reside or even be in Australia to receive proper service (service is simply receipt by the other spouse of the Court documents] of the documents.
  • The Divorce application must be served on the other spouse if the spouses are not making the Application for Divorce together.
  • It should be noted that unless co-operation can be secured from the other spouse that they will sign an Acknowledgment of Service Document verifying their receipt of the Court document, then the Application for Divorce would have to be served personally.
  • Personal service of the documents may be undertaken by professional process servers located in the country of the other spouses’ residence or else it can be served by a relative or friend.
  • If personal service is required, the person serving the document on the other spouse (the Respondent) will have to swear an Affidavit of service.

Question 7 – What if the Applicant does not know the whereabouts of the Respondent spouse and the Respondent spouse has disappeared or returned to India and the address is not known – is it still possible to secure a Divorce?

  • Yes, an Application for Divorce is still possible, but a further application seeking the permission of the Court to have the requirement of service waived would be required.
  • The application to have the leave of the Court may be made at the same time as the hearing in relation to the actual Divorce application.
  • In such instances, the Court may make an order for ‘substituted service’. Substituted service simply means that the Court may allow the Applicant to serve the Divorce documents on relatives or employers of the Respondent spouse or the Court could require that the Applicant make attempts to do an electoral roll search and other such enquiries.

Question 8 – Are the children’s issues also determined by the Court at the Divorce hearing?

  • The Divorce hearing is a separate matter from children’s’ issues and the Court will not deal with any issues pertaining to custody or contact relating to any children of the marriage
  • It should be noted that if there are children of the marriage, before the Court grants Application for Divorce, the Court would be interested in securing information about the welfare of the children ie financial support, schooling issues and health issues.
  • It should be noted that the Court has the power to refuse to grant the Divorce if the Court is of the view that the parties are generally not taking care of the welfare of the children.
  • In most circumstances, however, the Court will grant the Divorce even if the Court is not satisfied that both parties have taken responsibility for the children of the marriage.

Question 9 – Is it possible for both the husband and the wife to make a joint Application for Divorce and is it possible for the parties to seek convenient way of securing a Divorce?

  • Yes, it is possible for both parties to make a joint Application for Divorce and both parties would be swearing or affirming an Affidavit as to the date of the separation.
  • If, however, it is discovered that both parties have indeed been living together and the 12 month separation requirement has not been satisfied or is otherwise not genuine, but that the spouses have invented the separation date in order to secure Divorce, then both parties could potentially face prosecution for perjury.

Question 10 – Does the Applicant and the other spouse have to go to Court?

  • If the parties do not have any children, and there are no complicating issues such as the marriage being less than 2 years or that the Divorce application cannot be served, then there is no requirement to attend Court.
  • If, however, there are children of the marriage, then the Applicant or his lawyer has to attend Court.
  • The responding spouse does not have to attend Court and would only attend Court if the Respondent spouse opposes the Divorce on the grounds that the required 12-month separation had not taken place.

Question 11 – Is the Divorce application costly?

  • To start with, there are filing fees in the sum of $800.00 which must be paid to the Federal Magistrates Court.
  • The professional legal fees would vary depending on whether there are any children of the marriage or whether the marriage is less than 2 years and whether an application needs to be made to the Court to secure cancellation of the service requirement or secure substitute service.

Prakash Raniga Principal Lawyer of RRR Lawyers

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