What is a simple divorce?
Divorce is the formal ending of a marriage, as ordered by a family law court. It is distinct from property, maintenance, child support and/or parenting matters.
We are often informed that a client wants a ‘simple divorce’.
In Australia, an application for divorce requires evidence of:
a marriage that is recognised under Australian law;
a sufficient connection with Australia (e.g., at least one party resides in Australia and has done so for the past 12 months or is an Australian citizen); and
separation of the parties for 12 months or more prior to the date of application.
The application itself, which must be sworn or affirmed to be true and correct, will provide most of the required evidence. However, separate evidence confirming the fact of the marriage (typically, a copy of a marriage certificate in English) must also be filed with the court.
The simplest application for divorce is a joint application
A joint application for divorce, which is signed by both parties, simplifies matters because there is then no need for one party to:
have the other party served (i.e., provided with) a copy of the application; and
make and file with the court an affidavit (sworn of affirmed written evidence) to prove service.
What will complicate an application for divorce?
Requirements for additional information or evidence
If it is less than 2 years between the date of the marriage and the date of the application, then the applicant must file with the court a certificate, from an accredited counsellor, to show that counselling between the parties has been attempted.
If there are existing orders or pending proceedings, say for property, parenting, or family violence proceedings, or divorce proceedings in another country, the relevant details must be set out. Copies of any relevant orders must be attached to the application.
If the parties have a child together, or a child is regarded as a member of the family, and that child is under the age of 18 years, the application must address the living arrangements, time spent by the parties with the child, financial provision for the child, and the education, health and welfare of the child. The applicant will usually be required to attend court.
If an applicant does not read in the English language then the application must be read to the applicant, and where appropriate, interpreted in the language used by the applicant. The signing of the affidavit section of the application (swearing or affirming its truth and correctness), must also be witnessed by the person who has read it and, if necessary, interpreted it.
If the marriage certificate or evidence of marriage is not in English, then it must be translated by an accredited translator and the translator must make an affidavit to confirm that it has been properly translated. The affidavit together with the non-English evidence of marriage and the verified translation, must be filed with the court.
If there is no certificate of marriage, then an affidavit setting out evidence of the fact of the marriage must be made and filed with the court.
If there is reliance upon a period of separation-under-the one-roof, the applicant must make an affidavit to explain the circumstances and living arrangements of that period. Ordinarily, a third person, familiar with the circumstances of the relationship, must also make an affidavit to verify those circumstances. Those affidavits must be filed with the court.
Difficulties of Service
If the application is made by one party alone, then the application and other documents must be personally served on the other party by a third party (usually a professional process server). Service by post or electronically is possible but those means should only be used if the other party can be relied upon to make an Acknowledgement of Service in writing (often not applicable).
If the other party cannot be found or cannot be served personally, then it will be necessary to make a separate application to the court for an order to either dispense with service or to permit non-personal service (i.e., substituted service).
Orders to dispense with service are relatively uncommon.
To be successful in an application for substituted service you may need to satisfy the court that personal service is not possible, and that by posting, emailing or delivering the application to the address of the other party or a parent or friend of the other party, the application is likely to be brought to the other party’s attention. If that is not possible then some other way to bring the application for divorce to the attention of the other party will need to be found, or grounds to dispense with service must be raised.
Opposition to a divorce
An application for divorce may be objected to by the other party. For example, the other party may claim that you have not been separated for 12 months. The court will determine whether or not the claim has merit.
You should seek legal advice from a lawyer experienced in family law matters if you consider that your proposed application for divorce is not so simple after all.