Requirements for Divorce Application

Discuss about the Applying Of The Manage Your Own Divorce.

(Your Name)

Paralegal         

XYZ Solicitors           

421, King Street

Sydney, NSW- 2019

15^th March 2018

Dear Ms Chloe James

Re: Divorce Application

This is with reference to the information sought out regarding the legal procedures and requirements in context divorce. This letter covers a detail on the process of how divorce can be undertaken by a person, the courts where applications can be filed in, the time limitations and the costs which were involved, and the other pertinent details based on the requirements laid down by the client.

Before staring the divorce process, certain prerequisites have to be fulfilled. The first requirement is to check that he couple had been separated for over 12 months. The court has to be satisfied that the marriage has ended and it has to be proved that the couple has been separated with no chance of them getting back together[1]. Where the couple leaves under one roof even after separation, they would have to provide extra information to the court. In such a situation, there is a need to provide an affidavit with the divorce application. This affidavit is the written statement which allows for the evidence to be provided. In this affidavit, the client needs to provide that there had been a change in marriage, which could be sudden or gradual, to show that the couple has separated. There is a need to explain on the changes in the sleeping arrangements, the reduced family outings or shared activities, the shortfall in performance of household duties, the division of finances in terms of separate bank accounts, and other examples to show that the marriage has broken down, in terms of family and friends being notified. There is also a need to explain in this affidavit the reason for leaving in the same house, the living arrangements for children below 18 years while the couple lived under one roof and the government benefits which have been advised for separation[2]. In the present instance, the couple had not been separated for a minimum of 12 months. They were living under the same roof. As a result of this, there would be a need of filing an affidavit, covering the aforementioned details, with the divorce application.

Where the individual is married for a period of less than two years, there is a need for the couple to try marriage counselling before an application can be made for divorce. However, in certain situations, the court can permit the divorce application to be filed without getting through counselling. In the present instance, the individuals had been married for over two years as the separation came after over 25 months. It is also crucial that the spouse is made aware of being served with the divorce application. In order to make a divorce application, certain important documents have to be submitted. The first document is the divorce application. This is followed by a copy of marriage certificate[3]. Where an individual does not have marriage certificate, there is a need to get copy from Births, Deaths and Marriages in the state where the individual was married. In case a person is married overseas, they have to contact the relevant authority in such nation for getting a copy of marriage certificate. Where the individual is not able to get a copy of marriage certificate, there is a need to file an affidavit setting out the reasons for not being able to provide the certificate[4].

No-fault Divorce Principle

There is also a need to attach the passport or the copy of citizenship. This is required to show that the individual is either Australian, or has stayed in Australia for a minimum period of 12 months in legal manner. There is also a need to make payment of the filing fee, which at current is $845. There are changes being brought in the filing fee from time to time. Where the applicant can show that they faced financial hardships, they can get the fees reduced to $280[5]. As the client is receiving Austudy payment, the client can file an application for reduction of payment of divorce or decree of nullity. This would require the documentary evidence to be submitted with the application, regarding the support clams, in terms of Austudy payment[6]. The divorce fee would be reduced in this case also because the client and the spouse have no source of income and their child is dependent upon them.

Under the Australian law, the Family Law Act, 1975[7] created the principle of no-fault divorce. When the court grants the divorce, it does not take into consideration the reasons for the end of marriage. They only consider the ground for divorce as being the breakdown of marriage and there are no reasonable chances of the parties getting back together. The jurisdiction or the power of dealing with the dissolution of marriage has been given to the Federal Circuit Court of Australia through the Part VI of Family Law Act, 1975[8]. In the granting of divorce, the financial support issues are not determined, or that of the arrangements for children or property distribution. It only encompasses the end of marriage[9].

In order to make the no-fault divorce application, it has to be shown before the court that the marriage has been broken down irretrievably. Where there are any children under the age of 18, the court would grant divorce only after they are satisfied that proper arrangements have been made for the children. It is crucial to note that a divorce application can also be opposed in certain cases. When the couple has been separated for over twelve months, there are very few opportunities which allow for a divorce application to be opposed. The divorce can only be opposed when the court does not have the jurisdiction or there have not been twelve months in separation, as had been alleged in the application. An individual can also seek dismissal of divorce application by setting out grounds in the response to divorce.

Divorce Application Process

When it comes to the divorce hearings, it is not required for the parties to attend the court hearing where there are no children under the age of 18 years. Where the joint application for divorce is filed, the couple is not required to attend court hearing even when there are children below the age of eighteen. In such a case where sole application is made by the individual, and a child is there who is below the age of eighteen, it is obligatory to attend the court hearing[11]. In the present instance, the sole application for the divorce would be filed by the client as the spouse does not agree with the divorce proceedings and wants to try marriage counselling first. These would not be successful as the marriage has already crossed two years mark. As the divorce application is filed only by the client, instead of being a joint application, it would be obligatory for the parties to attend the divorce hearing.

As highlighted earlier, the grant of divorce does not cover the matters regarding property and maintenance, or the parenting arrangements for the children. Where the individual wants to make arrangement on these matters, they can make such arrangement with the spouse and file the same in the court, or they can seek an order from court where they are not able to reach an arrangement. Where an individual wants to apply for maintenance of self or for the property division, there is a need to file separation application within a period of twelve months from the date off divorce becoming final. Conversely, this can be done with the permission of court to apply[12].

The basic step by step requirement for divorce process is reiterated here. The first requirement is for an application for divorce to be electronically filed. There is a need to affirm or swear the application for divorce before the Justice of peace, lawyer, or any other individual authorized to witness the affidavits in the state or territory. There is a need to make two photocopies of application for divorce, which is completed and signed and comes with the supporting documents and its photocopies. There is also a need to attach the copy of marriage certificate. There is also a need for these documents to be accompanied by the application for reduction in the filing fee, coupled with the details of the Austudy payments[13]. When all such documents are filed, the court gives a file number to the applicant and it also covers the date and time for hearing. In cases of sole application, the court keeps the original divorce application, and gives the applicant two copies of sealed application, along with information brochure ‘Marriage, Families and Separation’. Where a sole application for divorce is made, a sealed copy of divorce application has to be served to the spouse along with the information brochure, a minimum of 28 days before hearing date where the spouse lives in Australia. There is also the obligation of attending the court hearing in cases of children below 18 years. Upon the success of divorce application, a divorce order is granted by the court. It becomes final one month and one day after it is made, save for such cases where the period is shortened by the court order[14].

Financial Support and Property Distribution

In order to proceed with the divorce of the client and her husband, certain questions have to be answered by the client. The first one relates to the marriage certificate. Since the client does not have a marriage certificate, there is a need to attain clarity on the process adopted by the client in getting such marriage certificate. This requires the information on the attempts made by the client in contacting the relevant authority in Sicily, Italy to get the marriage certificate. Any kind of evidence which the client has, and which can be presented in the court, as a proof of evidence, has to be attained from the client. In order to fill the affidavit, there is a need to attain the schedule and history of shared activities and family outings from the client, along with the decline in performance of household duties of each other. It is crucial for the client to have intent of changing her living situation. And information regarding the same has to be clearly attained from the client.

The next key point here is the finance plans for self and for the child. It is important for the client to clarify on the plan they have to manage their finances. The client is already on Austudy payments and the spouse is unemployed. The manner in which the client would look after the needs of her and her child has to be understood. As none of two, i.e. the husband and the wife, can leave the house, what kind of living arrangements does the client want. There is also the matter of custody of the child. Does she want to share the custody of the child with the father, or does she want sole custody of the child? Even though these matters are not decided in the divorce proceedings, it is crucial that such questions are clarified at this stage only. This is because when the parenting orders are sought out in the future, such divorce applications can be used as supporting or opposing evidence.

It is worth noting that the overall case of the client is very strong. Even if the spouse of the client files the response to divorce, the chances of the spouse being able to stop this divorce are slim. This is particularly due to the fact that the couple had been married for over two years, and that two had been separated which was known to the family and friends. Again, the application has been checked for errors of fact, so no application has to be made for this reason. However, where the client attempts to seek maintenance allowance for the child and herself after the divorce, the chances of her getting the same are slim. This is due to the financial position of the spouse, along with his lack of English fluency, required for doing jobs in the nation. Despite the lack of marriage certificate with the client, the supporting evidence presented by the client that would be covered in the appendix with the divorce application is enough to establish that the two had been married. There is ample proof to establish that the client and her spouse had separated and the same has been detailed in the appendix to the divorce application. For her future perspective, she can seek support for her child through the different venues. The case is again strengthened here for the client as she has also drafted a proper arrangement for her child in the future, which is detailed in the appendix to the divorce application.

Thus, this process has to be followed and the aforementioned details have to be fulfilled in order for the client to be able to apply for getting a divorce. This letter of advice is also accompanied by the divorce application which has to be filed as sole applicant by the client, along with the affidavit which would have to be filed with this divorce application. These have been added as annexure to this letter of advice. This affidavit covers some of the information which is assumed to have been provided by the client, based on the questions sought out in this letter.

Yours sincerely

(Your Name)

Paralegal

Reference

[1] Legal Aid, Manage Your Own Divorce – Applying for a divorce (2018) <https://www.legalaid.nsw.gov.au/publications/factsheets-and-resources/manage-your-own-divorce-applying-for-a-divorce>

[2] Family Court of Australia, Separated but living under one roof (01 March 2013) <https://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/reports-and-publications/publications/separation/separated-but-living-under-one-roof>

[3] At 1

[4] Federal Circuit Court of Australia, How do I apply for a Divorce? (16 March 2017) <https://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/how-do-i/divorce/apply-for-a-divorce/apply-for-divorce>

[5] At 1

[6] Federal Circuit Court of Australia, Guidelines for reduced fee – divorce and decree of nullity application (16 March 2017) <https://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/reports-and-publications/publications/fees/guidelines-for-reduced-fee-divorce-and-decree-of-nullity-application>

[7] Family Law Act, 1975 (Cth)

[8] Family Law Act 1975, pt VI

[9] Federal Circuit Court of Australia, Divorce (08 June 2016) <https://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/family-law-matters/divorce-and-separation/divorce/divorce>

[10] Ibid

[11] Ibid

[12] Ibid

[13] At 1

[14] Federal Circuit Court of Australia, Application for Divorce Kit (2018) <https://www.federalcircuitcourt.gov.au/wps/wcm/connect/d9c6e4be-3288-4fc5-9080-e0ffb759beee/Divorce_Kit_0313_V2.pdf?MOD=AJPERES&CONVERT_TO=url&CACHEID=d9c6e4be-3288-4fc5-9080-e0ffb759beee>