Filing for divorce is the easiest part of separation…that is, depending on whether you file jointly or separately. The fact is, whether you go through this with your future ex-spouse or on your own determines how easy or difficult your divorce will be. If you’re wondering about the difference between filing jointly and separately for divorce in Australia, here’s how they work.
File for divorce jointly
Under family law, a joint divorce petition is completed by you and your spouse in front of authorized witnesses. It simply requires you to wait at least 12 months after separation and complete an online application on the Family Court website and return/submit it along with a copy of your marriage certificate and application fee. (If you are experiencing financial hardship, you may be eligible for a fee waiver.)
If you file for a joint divorce, you or your partner will not need to participate in the divorce proceedings.
As long as all necessary information is provided, the divorce will be approved approximately two months from the date of filing. You will receive an email notification. You can also check online to see if your divorce order is on the Federal Court Portal.
If it is possible to apply jointly, it is preferred in terms of simplicity.
File for divorce alone
Your other option is to file a separate divorce petition. Here, one spouse files for divorce, but it’s more complicated. You may need to file for divorce without your husband because:
- Your spouse doesn’t want a divorce
- You cannot file for divorce jointly with your partner
- You can’t find your ex
You can complete an individual application form online on the Family Court website. However, you will need to serve the petition on your spouse so that he is notified of the upcoming divorce hearing. Here are the answers to your questions.
How do I serve papers for a separate divorce petition?
When you complete your separate divorce petition online, you will receive documents that your spouse needs to receive, read, and sign. This is accomplished through “Document Service”.
The file must be:
- Served at least 28 days before the hearing date (if your ex-spouse is in Australia)
- Served at least 28 days before the hearing date (if your partner is overseas)
- Personal delivery or mail
- If delivered by hand, it must be someone other than you, perhaps a friend, relative, or process server.
It is absolutely necessary to serve these documents as they require your spouse’s signature. If you are considering serving it by mail, you must be 100% sure your husband will sign.
But I don’t know where my husband lives. Can I send him divorce papers?
Obviously, you can’t provide him with documents if you don’t know his whereabouts. In this case, you must first prove that you have tried to find your spouse using the following methods, all of which must be documented in an affidavit:
- Try his last known address
- Ask his family and friends
- Go to his place of work and ask
- Post a notice in the newspaper
- What else is there to prove that you tried to find him?
You can then apply for:
- Substituted service, which is serving documents on another person who can deliver them to your husband
- Order to exempt from service
You may need court permission to post a photo of your spouse in a public place or place a notice in a local newspaper.
For more information on how document delivery works, or if you’re having trouble, watch this video:
What happens when he receives the application?
When your spouse receives the application:
- Your ex-husband will need to sign an acknowledgment of service to confirm that he has received the form
- You must then sign a signature verification affidavit to verify his signature
- Finally, the person serving the document must sign an Affidavit of Service stating the details of service, namely the time, date and place.
Once you have all of these documents, you must be able to submit them to the court before the hearing date.
What if my husband doesn’t sign?
If your stubborn spouse refuses to sign the acknowledgment of application, you will have to use a process server (with a photo of your partner attached) to deliver the documents. The process server will then sign an affidavit stating that your spouse has received the documents.
Do we need to attend the court hearing for a separate divorce petition?
If you and your husband have children aged 18 and under, the applicant will need to appear in court for a separate divorce petition hearing. You may have to provide evidence, especially if one party is fighting for child custody.
Even if you have children under 18, your ex-partner will only need to attend the court hearing if he is opposing the divorce.
What if I can’t go to court?
If you are unable to attend the hearing in person, you can request to appear by phone using the Telephone/Video Link Attendance Application Form. For more details about the divorce process in Australia, please seek legal assistance from your solicitor or solicitor.
Conclusion of Divorce Petition Process
All in all, whether you choose to file for divorce jointly or separately in Australia depends on your personal circumstances and relationship with your ex-spouse. A joint application is the simpler and more straightforward option as it avoids going to court and ensures both parties are on the same page. On the other hand, if your spouse is unwilling to cooperate or cannot be found, you will need to apply separately. Still, it involves more steps, including serving documents and possibly attending a court hearing. No matter what path you choose, understanding the differences between these applications ensures you are better prepared for the process. For further guidance, consider seeking legal advice to ensure everything goes smoothly.
