Divorce

Either party can apply for a divorce after having been separated for at least 12 months. In WA, Applications are made to the Family Court of Western Australia. The proceedings are regulated by the Family Law Act 1975 (Cth).

The sole ground for divorce in Australia is “irretrievable breakdown of marriage”. This ground is proved by demonstrating to the Court that you have lived separately and apart for more than one year, and that there is no prospect of cohabitation being resumed through a reconciliation.

If the parties have been married for less than two years, there is an extra requirement to be fulfilled in the divorce process.

As an Applicant, you must also file a Certificate confirming that you and your former spouse have attended a qualified marriage counsellor to consider reconciliation. There needs to be a discussion – however brief – of the possibility of your getting back together.

If you cannot locate your former spouse or there has been family violence during the relationship, then an Affidavit may be filed as opposed to a Certificate.

Since 1975, Australia has operated a “no fault” system of divorce. Previously, an Applicant had to prove one of a number of grounds, such as adultery, desertion or unreasonable behaviour.

Nowadays, the Applicant need only prove separation for 12 months before a divorce can be granted – the fault of the other party is immaterial, and even the so-called “guilty party” can be the Applicant.

Parties can also make a joint application for divorce, which usually requires no formal attendance at Court by the party or their solicitor.

The simple answer is no. Property settlement and divorce proceedings are completely separate processes.

The only link between the two is that you must have filed your Application for Property Settlement within 12 months of your divorce becoming final, otherwise the automatic right to seek a settlement is lost and a special Application must be made to the Court to apply “out of time”.

This may add to your time, costs and stress so you need to ensure you apply well before the expiry of the 12 month period in case the Court (for administrative reasons) was initially to reject your Application for Property Settlement.

Similarly, recording parenting arrangements or resolving parenting disputes is not contingent upon or prejudiced by a divorce.

The best interests of a child are the paramount issue for the Court to consider, and it makes no difference if the parties are divorced or not.  Your right to make an Application for Parenting Orders is not affected.

However, if the Court finds that proper or appropriate arrangements have not been made for the care, welfare or development of any children under the age of 18, it does have the power to refuse to grant your divorce.

This is why the Divorce Application itself involves quite a lot of detail regarding the children’s living arrangements, health, education and general welfare.

However, just because the parties do not agree on parenting arrangements, or have proceedings pending in Court, does not mean the divorce will not be granted.

If you were not married in Australia, you must demonstrate to the Court that either:

1. 1. You are Australian by birth, descent or by a Grant of Australian Citizenship; or
   2. You genuinely and habitually live in Australia and have done so during the preceding 12 months before making your Divorce Application.

Generally speaking the Courts in Australia will recognise a divorce from overseas so long as the divorce has been granted in accordance with the laws of the country in which it was made.

The importance of being able to prove the date of separation cannot be underestimated. In some cases, great difficulty has been caused by the separation date not being clearly identifiable.

It is therefore essential that you note the date with clarity, and preferably be able to prove it by e.g. correspondence between the parties such as SMS text messages or emails.

Child support or Centrelink Applications can also assist in clarifying any ambiguities, but something in writing from the other party is the best and most obvious means of proving your position regarding the separation date.

The date of separation is vital because the Court cannot grant a divorce unless the parties have been living separately and apart for 12 months or more. The process may be delayed until the date of separation can be proved, if it is disputed and one party alleges there has not been a full 12 months’ separation.  

Although these FAQs deal predominately with marriage and divorce, it is also essential to note the impact that inconsistent separation dates can have on de facto relationships.

In de facto property disputes the parties not only have to prove they were living together on a genuine domestic basis (i.e. as if married) but there is a strict, two year post separation timeframe within which an Application for Property Settlement can be made.

If the separation date is disputed, this could inadvertently cause you to fall outside that two year filing window – and your claim could potentially be lost.

Note that in Western Australia, de facto relationships are governed by the Family Court Act 1997 (WA) and not the Family Law Act as in all other States and Territories, although the two year filing limit for property settlement is universal.

In most cases, separation is “clear cut”, in that one person usually leaves the matrimonial home at or almost immediately after the communication of the separation between the spouses.  However, it is not uncommon for parties to separate yet to continue to remain living “under one roof” i.e. living together but not as spouses on a genuine domestic basis.

In such cases, the actual date of separation can be unclear, and this lack of clarity could be used to disadvantage one or other party.  

Various factors that might convince a Court that separation had/had not occurred include the following:

• Whether the parties continued a sexual relationship, or slept in the same bed/same bedroom after the alleged separation date.
• The degree of financial dependence (or independence) of the parties on each other e.g. did they close their joint bank account, or continue to freely support each other.
• Were any government agencies or bodies notified of the separation, such as the ATO, Child Support Agency or Centrelink, or e.g. the children’s schools?
• Had the parties been open and forthright about making the separation known to family and friends, and the public at large?
• Did the parties still socialise together as a couple – attending e.g. dinner parties, social engagements, going on holiday together, going to the movies etc?
• Were the parties, whilst separated but living under one roof, still performing washing/cooking/cleaning/shopping/ironing and other domestic chores for each other’s benefit or on their behalf.
• The general nature of how the household operates differently since the alleged date of separation.

In the situation where you and your spouse have separated but both have continued to live in the same house during any period of the prior 12 months, both you (as the Applicant) and a third party will have to file an Affidavit along with your divorce Application, giving evidence of your/their knowledge of the types of arrangements mentioned in the preceding paragraph.

These Affidavits will be necessary even if you and your former spouse file a joint application, in which case an Affidavit will be required from each of you, as well as a third party. If corroborating evidence of separation having occurred under one roof is not provided, the Court will not grant the divorce.

In December 2017 amendments were carried out to The Marriage Act of 1961 so that the definition of marriage now reads “the union of two people to the exclusion of all others, voluntarily entered into for life”.

Since the amendments, same sex married parties have been able to apply for divorce in exactly the same manner as heterosexual couples i.e. they must demonstrate they have been separated for at least 12 months with no reasonable prospect of a reconciliation.

Same sex couples who legitimately married overseas prior to the 2017 Australian amendment can consider the 12 months separation period as beginning before December 2017, so long as they were married at that time and there has not been a period of reconciliation of more than three months.

If the parties separated but later reconciled for a period not exceeding three months, then the period prior to the reconciliation may be counted towards the necessary 12 month period of separation.

If, however, the period of reconciliation lasts for more than three months, then the previous period of separation will not “qualify” towards the 12 month period, and the clock will start “ticking” afresh.

Once your Application has been signed, (either sworn or affirmed) witnessed and filed at the Family Court (together with any required Affidavit and a copy of your Marriage Certificate) then you are required to formally serve the Application on your spouse.

This must occur at least 28 days prior to the hearing if the other party resides in Australia; or 42 days if they live outside Australia.

Although it is possible to serve the Application on your spouse by post, this is cumbersome and requires proof of receipt. If your spouse already has a solicitor, then you should enquire whether that solicitor has instructions to accept your Application on their behalf. If not, the best practice is to engage an independent third party (i.e. a process serving agency) to physically (and personally) serve the documents on the other party.  It is not permitted to “serve” documents on the other party yourself by hand.

If the Application is a Joint Application for Divorce, then there is no need to prove service on the other party.

As a general guide, a divorce hearing will be granted within approximately three months of the date of filing the Application.

Joint Applications or Applications where there are no children under the agent of 18 will be dealt with by a Registrar in Chambers, and no appearance by the Applicant (or their solicitor) will be necessary. Otherwise a personal appearance is required.

Again, in general terms, a hearing for divorce where all of the paperwork is in order will last no more than a few minutes. Once the Order is granted, the divorce will become final one month later.

Even if you do not engage a solicitor to assist in drafting the Divorce Application and any necessary accompanying Affidavits etc, you will still need to pay the Court filing fee of $930.

This fee remains the same whether the Application is made as a sole Applicant or jointly by both parties.  In a Joint Application it is not uncommon (but not required) for the parties to “split” the Application fee.  

It is possible, however, to apply for a reduced filing fee if you hold a Health Care Card or Pensioner Concession Card. An Application Form must be submitted with your Application, together with a photocopy of the relevant card. If you are in receipt of Youth Allowance, AUS Study or AB Study you might also be eligible for a concession in terms of the filing fee.

For more information, please consult our article on the cost of divorce.

In the event that you cannot locate your former spouse, despite having made all reasonable attempts to do so, then it is possible to apply for an Order to either dispense with service altogether, or enable what is called “substituted service” on someone you know is regularly in touch with your spouse.

If your working commitments or geographical location prevent you from attending your Divorce Hearing in person, it is possible to make a request to attend the hearing by telephone.