The experience of going through a divorce can feel stressful and overwhelming for many couples. For these reasons, the divorce process in QLD is designed to be as straightforward as possible. To illustrate that the process is not as daunting as it may seem, we have created a step-by-step guide to help you and your spouse navigate the process successfully.
BEFORE YOU FILE A DIVORCE APPLICATION, CONSIDER THE FOLLOWING ISSUES
What type of application is best for my situation?
Before you file a divorce application, consider whether you wish to file a sole or joint application as different obligations are attached to each type. If you file a sole application, you will be the applicant and your partner will be the respondent. Only you need to sign the application, which then has to be served on the respondent. If the application will be made together, both parties will be the joint applicants.
Am I eligible to file a divorce application?
Either party in a divorce application must satisfy at least one of the following requirements:
- You were born in Australia or have become an Australian citizen;
- You are an Australian citizen by grant of Australian citizenship; or
- You usually live in Australia and have lived in Australia for at least 12 months.
If you or the other party meet at least one of these requirements, you will be eligible to commence divorce proceedings.
Has my marriage broken down irretrievably?
For a divorce application to be accepted by the court, your marriage must have broken down irretrievably. This means that there is no reasonable likelihood that you and the other party will rekindle the romantic relationship.
Note that if you have been married for less than 2 years, you will be required to engage in mandatory counselling. If the other party refuses to participate in this process, you can still apply for a divorce and engaging legal help is advised.
How long have I been separated for?
You must have been separated for at least 12 months and 1 day. Sometimes, couples who are separated still live together due to children or other factors.
You can get back together for a maximum of 3 months without restarting the 12-month separation requirement as stated above.
In Queensland, your separation will commence once you stop living together as a couple. After separation, you may be still living at home together but living separate lives. This arrangement is called ‘separation under the one roof.’ You may be required to provide evidence of this living arrangement to agencies such as Centrelink. When deciding if you’re ‘separated under the one roof’, relevant factors will be:
- Whether you sleep together;
- Whether you engage in sexual activities with the other party;
- Whether you continue to share domestic duties and meals;
- You share money and bank accounts; and
- Whether your family and friends view you as separated.
Do I have a marriage certificate?
You will need to provide your marriage certificate in order to file a divorce application.
Once these initial requirements have been considered and satisfied, the next step is to file a divorce application.
FILING A DIVORCE APPLICATION:
To commence proceedings for a divorce, an application for divorce must be prepared. This can be done either jointly or solely.
What do I file?
Along with the Application for Divorce, you will need to file a copy of the marriage certificate; proof of jurisdiction (such as your passport, VISA or Australian citizenship); a counselling certificate if you have been married for less than 2 years; and an affidavit for filing online. This affidavit must be witnessed by a lawyer or justice of the peace.
Where do I file?
To prepare and file your application, along with the supporting documentation, you can engage the help of a solicitor or it can be done via the Commonwealth Court Portal. To access the Commonwealth Court Portal, you will need to register. Note that applications for same-sex couples cannot be filed online and parties should contact the Family Law National Enquiry Line on 1300 352 000 or email enquiries@fcfcoa.gov.au for further directions.
How much will this cost me?
There will be a standard filing fee of $1060. This is payable using a Visa debit/credit card or Mastercard. If you are eligible for a reduced fee, the filing fee will be $350. If you believe that you may be eligible for a fee reduction, visit Guidelines for fee reduction. If you are not eligible but believe that paying the filing fee will cause financial hardship, you should complete the Application for reduction of payment of divorce or decree of nullity – financial hardship.
What next?
After filing the relevant documents, the court will provide you with a hearing date for the application to be heard. Usually, the period between the filing date and the hearing date is eight weeks, but this can vary.
How do I serve the sealed documents on the other side?
If you have filed a sole application, you will need to serve the sealed documents on the other side. Make sure you download and save the sealed material on the Commonwealth Court Portal. If the application has been jointly made, there is no need for service.
| Method of service | Service requirements | Time requirements |
| By post | You can post the sealed documents to your spouse if you trust that they will sign and return a Acknowledgment of service (Divorce) to you. The documents you need to serve via post include:
Once your spouse has returned the Acknowledgement of Service (Divorce), you need to complete the Affidavit of service – by post and attach the signed Acknowledgment of Service (Divorce). If the Acknowledgement of Service (Divorce) is not returned, you will need to organise the documents to be served by hand. If you cannot organise this within the time limits, you will need to ask the Court by email to adjourn the matter so that you have more time to serve the documents by hand. | If your spouse is in Australia, you will need to serve the documents within 28 days before the court hearing.If your spouse is outside of Australia, the documents must be served within 42 days before the hearing. There are no fees attached to this step. |
| By hand | You cannot serve the documents on your spouse yourself. You can arrange for a serve (over 18 years old) to serve the documents for you. You could ask a friend, family member or professional server. The documents to be served include:
If your spouse signs the Acknowledgment of service (Divorce), the server you have engaged must complete the Affidavit of service by hand document and attach the original signed Acknowledgment of Service. If the server does not know the respondent personally, which will occur if you have engaged a professional server, you must complete the Affidavit proving signature and attach a photocopy of the Acknowledgment of Service. If your spouse does not sign the Acknowledgment of Service, the server should complete the Affidavit of Service by hand and tick the appropriate box at Part B adding a note, if required, explaining the circumstances. If your spouse’s solicitor is served and the Acknowledgment of Service is signed, there is no requirement to complete the Affidavit of service by hand. | If your spouse is in Australia, you will need to serve the documents within 28 days before the court hearing.If your spouse is outside of Australia, the documents must be served within 42 days before the hearing. There are no fees attached to this step. |
| Your spouse is overseas | If your spouse is not in Australia at the time of service, the method of service will depend on whether the country that your spouse is in is a signatory to the Hague Convention. Visit the Attorney-General’s Department website for information about serving legal documents across international borders.If the country is a party to the Hague Convention, service may be possible by filing an application to serve under the Hague Convention in accordance with the Family Law Regulations 1984. If the country is not a party to the Hague Convention, you should obtain legal advice in relation to the appropriate service mechanisms. | |
| Your spouse is in prison | If your spouse is in prison at the time of service, the documents must be served on the person in charge of the prison. You must locate the name of the prison and your spouse’s MIN number. If you cannot find this information, you should contact Queensland correctional services. The documents for service must be posted to the person in charge of the prison, along with a cover letter setting out:
You must also complete the affidavit of Service by Post. |
What do I do once I have received the service documents?
Once you received the signed forms, you will need to upload these on the Commonwealth Court Portal.
DO I NEED TO GO TO COURT?
As discussed, once you have filed the correct material, you will be provided with a hearing date via the Commonwealth Court Portal. If you have engaged legal help, it is your solicitor’s duty to inform you of any important dates.
You will be required to attend the court hearing if you have filed a sole application and there is a child of the marriage under 18 years at the time of filing. If your spouse has filed a Response to divorce opposing the application, you will also be required to attend the hearing.
It is also advisable to attend court if you are required to provide additional affidavit material to explain circumstances, such as separation under the same roof/ married less than two years and other issues which may influence the outcome of your matter.
WHAT CAN I EXPECT FROM COURT?
All divorce hearings are held electronically. If you are required to attend the hearing and you have not received the dial-in information, we advise that you contact the registry where the divorce is scheduled to take place. To do this, type the name of the registry where the divorce is taking place followed by @fcfcoa.gov.au. You should include your file number, name, date of birth and name of the other party.
The court will make a divorce order, which usually becomes final 1 month and 1 day after it has been made. A copy of the divorce order will be mailed to you as proof of your divorce.
WHAT HAPPENS AFTER THE FINAL ORDER IS MADE?
If you wish to apply for a property settlement, the application for a property settlement must be filed within 12 months of the date the divorce order came into effect.
If you wish to remarry, you can file a notice of intention to marry 1 month and 1 day after the divorce order has taken effect.
If you wish to dispute the divorce order, you can only do so if:
- You have not been separated for at least 1 month; or
- There is no court jurisdiction.
If you do not want a divorce to be granted, you must file paperwork with the court and appear at the divorce hearing to explain why you want the application dismissed. If you agree to the divorce being granted but wish to dispute the facts made in the Application, you must also file the relevant paperwork and appear at court. In both situations, we strongly advise you to seek legal advice.
Need help?
Contact the Brisbane or Cairns family lawyers team at James Noble Law today for a FREE, no-obligation 20-minute consultation. To schedule an appointment with one of our Qualified and experienced Family lawyers in Brisbane.
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- Online Divorce Application Options You Might Not Know About
- Marriage Equality and Same-Sex Divorce in Australia
- What Is The Best Time For Divorce?
- Getting Divorced and Need Advice? Don’t Always Trust Who You Know
- Top Tips for Coping During Separation and Divorce
- SEPARATION AND DIVORCE
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