Applications for divorce are processed by Registrars of the Federal Magistrates Court, who sit in the federal court buildings at Sydney and Parramatta . The court process is quick and easy for most people, and if there are no children under the age of 18 attendance at court is unnecessary for either party. An Application may only be filed in the court after you have been separated for more than 12 months. For example, if you separate on 1 August then the documents cannot be filed until 2 August or later. The standard fee paid to the Court is $352.00 (set to increase in October), with any lawyer's fees on top of that.

Separation under the one roof.

The divorce application is not quite as simple when part or all of the 12 month separation period is spent living together in the same household. The Court will require further information to enable it to be satisfied that there has in fact been an irretrievable breakdown of marriage and it is a genuine application. An affidavit (sworn statement) has to be prepared by the person applying for divorce which details evidence of the parties' intention to end the marriage. This would have to address such questions as whether or not the parties still share the same bedroom, whether or not one performs any household duties for the other, financial arrangements between them, the extent to which there are other shared activities, why it is there is still a sharing of accommodation, and the like. In some instances, correspondence with Centrelink or similar government department may assist the court in determining the matter. This material would usually be attached to your affidavit. In addition, the court would expect to see an affidavit from an independent witness, such as a family friend or neighbour, to verify the changes in living arrangements.

Your lawyer is in the best position to advise what is required and to assist in preparation of the necessary documents required by the Court. It is advisable to consult your lawyer at an early stage as the Court is likely to refuse applications that are not accompanied by sufficient evidence of the separation and as a consequence the divorce will be delayed, perhaps for several months.

Unable to locate the other party?

In an ordinary case, the Court Rules insist that the divorce application, once it has been filed and stamped by the court's filing clerk, be delivered (served) to the other party. This often is done in person (by someone other than the applicant) or by post. In regard to postal delivery, it will usually be necessary to have receipt of the document acknowledged in writing by the other party on the proper form. Service of the divorce application on a person outside Australia is no different if done by mail except that a longer period of time must be allowed for postal delivery. Sometimes it will be necessary to pay for a service agent in the overseas country to serve the application.

Even if the whereabouts of the other party are not known, the Court will still expect an Applicant to have carried out reasonable enquiries with a view to locating the person to be served. An affidavit setting out such enquiries will have to be provided to the court in due course. If all else fails, the Court may still consider granting the divorce without the need to serve the application, referred to as 'dispensing with service'.

A case in which the author was recently involved illustrates some of the issues to be considered by the Court in an application to dispense with service. In that case, the husband and the wife were married in 1965. After a period of only 3 weeks, they separated and the husband disappeared, not to be seen since. To further complicate matters the wife was some time later involved in a serious accident which caused memory loss. The wife did not know the husband's relatives or where they came from. The starting point was an electoral roll search undertaken through a mercantile agent and phone book searches. Further enquiries by a private investigator may have been useful but beyond the means of the wife. Any other avenue of enquiry was exhausted. An affidavit outlining these enquiries was prepared for the Court. A separate application, apart from the divorce application, is required because the Court is being asked to make procedural orders relating to service of a document (the divorce application). In this matter the Court was satisfied that everything possible had been done to locate the husband and made the anticipated order that the wife place advertisements in daily newspapers for both Sydney and Melbourne in a specified format. In time and once proof of lodgement of the advertisements could be supplied, the divorce was granted. This case emphasises the need to consult a lawyer with experience in these matters to avoid problems and delays in the divorce being granted.

Another typical case might be where the other party cannot be located easily but it is a fair assumption that he or she will be in regular contact with a parent or sibling, whose whereabouts are known. The author can recall a number of cases in which the court has allowed service to be effected on a parent of the missing person. This may seem a little unusual but for any number of reasons one of the parties to a marriage may not wish their contact details to be known to the other. Every case has to be considered on its own facts and what is appropriate for one will not be for the next. The Court has a wide discretion and is flexible in these types of cases, but it must be borne in mind that it is not just a 'rubber stamp' and there has to be compliance with the Rules of court.