17 Jul What is Divorce?
It is often the case when I ask a client why they have come to see me they respond by saying “I want a divorce”. When exploring that statement further it becomes clear that the client themselves don’t know what they are asking for.
A Divorce does not in itself deal with or finalise issues such as property division or parenting arrangement of the children of the marriage. A separate and different application is required. A Divorce is the end of the legal union of the marriage. That’s it.
How do you get Divorced?
In Australia, we have what is called “No Fault Divorce”. That is, no reason has to be given in order to grant a Divorce other than the husband and wife have suffered an “irretrievable breakdown in their marriage”. In other words they must establish that there is no likelihood that they will get back together. This is usually achieved by being separated from each other. The minimum separation period is 12 months and 1 day.
Once the period of separation has been established, either the husband or the wife (spouse) or by them both, can complete a Divorce Application and file it with the Court. There are different requirements depending on who is filing for Divorce. If it is a sole Application, that is, one of the spouses wants the Divorce, notice of the Divorce Application must be given to the other, once it has been filed. This is known as Service.
There are many ways to serve a Divorce Application. You can’t serve the spouse personally, but can have a friend or family member serve them or you can post it to them provided they will sign an “Acknowledgment of Service”. You must then attach the Acknowledgement of Service to an Affidavit of Service to be completed by the person who effected Service and then file it with the Court.
If you think your spouse will be difficult, then the best way forward is to have a Process Server serve them personally. There is a fee involved. The Process Server finds your spouse from the information given to them, asks if they are the person named in the document and give the document to them. A process server usually asks if your spouse will sign an Acknowledgement of Service and if they choose to do so, it is attached to the Affidavit of Service.
You must file the Affidavit of Service with the Court.
The purpose of the Affidavit of Service is to advise the Court that the other spouse knows that the Application is going to be heard by the Court on the allocated day. It gives the spouse the opportunity to attend the divorce hearing if they choose to do so.
If you and your spouse are filing a joint application for Divorce, then the issue of service is made redundant, as you are both aware of and know the Application has been made. Therefore the Court is already satisfied that both spouses know the Application is going to be heard by the Court.
Do I have to attend?
If there are children of the marriage under the age of 18 years then yes, you should attend as the Court may wish to ask questions as to the arrangements of the children unless it is a joint application.
If there are no children under the age of 18 years and it is a joint application, then the hearing can occur in your absence and the certificate will be posted to you and your spouse after one month and one day.
Once you receive the Divorce Certificate, you are free to marry again.
The other aspect of receiving your Divorce Certificate is that if there are matters pertaining to the division of property, the Divorce in effect gives you a deadline of 12 months if you want the Court’s assistance on those issues. If you make an application after the lapse of 12 months, you are making an application “out of time” and will have to convince the Court why they should allow your application to be heard.
There is no such deadline in respect of seeking the Court’s assistance in respect of children’s issues.