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