| Applications for divorce are processed by | | | | allowed for postal delivery. Sometimes it |
| Registrars of the Federal Magistrates Court, | | | | will be necessary to pay for a service agent |
| who sit in the federal court buildings at | | | | in the overseas country to serve the |
| Sydney and Parramatta . The court process is | | | | application. |
| quick and easy for most people, and if there | | | | |
| are no children under the age of 18 | | | | Even if the whereabouts of the other party |
| attendance at court is unnecessary for either | | | | are not known, the Court will still expect an |
| party. An Application may only be filed in | | | | Applicant to have carried out reasonable |
| the court after you have been separated for | | | | enquiries with a view to locating the person |
| more than 12 months. For example, if you | | | | to be served. An affidavit setting out such |
| separate on 1 August then the documents | | | | enquiries will have to be provided to the |
| cannot be filed until 2 August or later. The | | | | court in due course. If all else fails, the |
| standard fee paid to the Court is $352.00 | | | | Court may still consider granting the divorce |
| (set to increase in October), with any | | | | without the need to serve the application, |
| lawyer's fees on top of that. | | | | referred to as 'dispensing with service'. |
| | | | |
| Separation under the one roof. | | | | A case in which the author was recently |
| | | | involved illustrates some of the issues to be |
| The divorce application is not quite as | | | | considered by the Court in an application to |
| simple when part or all of the 12 month | | | | dispense with service. In that case, the |
| separation period is spent living together in | | | | husband and the wife were married in 1965. |
| the same household. The Court will require | | | | After a period of only 3 weeks, they |
| further information to enable it to be | | | | separated and the husband disappeared, not to |
| satisfied that there has in fact been an | | | | be seen since. To further complicate matters |
| irretrievable breakdown of marriage and it is | | | | the wife was some time later involved in a |
| a genuine application. An affidavit (sworn | | | | serious accident which caused memory loss. |
| statement) has to be prepared by the person | | | | The wife did not know the husband's relatives |
| applying for divorce which details evidence | | | | or where they came from. The starting point |
| of the parties' intention to end the | | | | was an electoral roll search undertaken |
| marriage. This would have to address such | | | | through a mercantile agent and phone book |
| questions as whether or not the parties | | | | searches. Further enquiries by a private |
| still share the same bedroom, whether or not | | | | investigator may have been useful but beyond |
| one performs any household duties for the | | | | the means of the wife. Any other avenue of |
| other, financial arrangements between them, | | | | enquiry was exhausted. An affidavit |
| the extent to which there are other shared | | | | outlining these enquiries was prepared for |
| activities, why it is there is still a | | | | the Court. A separate application, apart |
| sharing of accommodation, and the like. In | | | | from the divorce application, is required |
| some instances, correspondence with | | | | because the Court is being asked to make |
| Centrelink or similar government department | | | | procedural orders relating to service of a |
| may assist the court in determining the | | | | document (the divorce application). In this |
| matter. This material would usually be | | | | matter the Court was satisfied that |
| attached to your affidavit. In addition, the | | | | everything possible had been done to locate |
| court would expect to see an affidavit from | | | | the husband and made the anticipated order |
| an independent witness, such as a family | | | | that the wife place advertisements in daily |
| friend or neighbour, to verify the changes in | | | | newspapers for both Sydney and Melbourne in a |
| living arrangements. | | | | specified format. In time and once proof of |
| | | | lodgement of the advertisements could be |
| Your lawyer is in the best position to advise | | | | supplied, the divorce was granted. This case |
| what is required and to assist in preparation | | | | emphasises the need to consult a lawyer with |
| of the necessary documents required by the | | | | experience in these matters to avoid problems |
| Court. It is advisable to consult your | | | | and delays in the divorce being granted. |
| lawyer at an early stage as the Court is | | | | |
| likely to refuse applications that are not | | | | Another typical case might be where the other |
| accompanied by sufficient evidence of the | | | | party cannot be located easily but it is a |
| separation and as a consequence the divorce | | | | fair assumption that he or she will be in |
| will be delayed, perhaps for several months. | | | | regular contact with a parent or sibling, |
| | | | whose whereabouts are known. The author can |
| Unable to locate the other party? | | | | recall a number of cases in which the court |
| | | | has allowed service to be effected on a |
| In an ordinary case, the Court Rules insist | | | | parent of the missing person. This may seem |
| that the divorce application, once it has | | | | a little unusual but for any number of |
| been filed and stamped by the court's filing | | | | reasons one of the parties to a marriage may |
| clerk, be delivered (served) to the other | | | | not wish their contact details to be known to |
| party. This often is done in person (by | | | | the other. Every case has to be considered |
| someone other than the applicant) or by post. | | | | on its own facts and what is appropriate for |
| In regard to postal delivery, it will | | | | one will not be for the next. The Court has |
| usually be necessary to have receipt of the | | | | a wide discretion and is flexible in these |
| document acknowledged in writing by the other | | | | types of cases, but it must be borne in mind |
| party on the proper form. Service of the | | | | that it is not just a 'rubber stamp' and |
| divorce application on a person outside | | | | there has to be compliance with the Rules of |
| Australia is no different if done by mail | | | | court. |
| except that a longer period of time must be | | | | |