If there is no child of the marriage aged under 18 years, you are not required to attend the court hearing. This applies for both sole and joint applications.

If you have made a joint application and there is a child of the marriage aged under 18 years, neither you nor your spouse are required to attend the court hearing.

If you have made a sole application and there is a child of the marriage aged under 18 years, you must attend the court hearing unless circumstances prevent you from attending.

If you are required to attend the court hearing and cannot, you can request to appear by telephone. You need to make this request before the court hearing and explain why you cannot attend in person. For example, you work full time and cannot take time off work, you have an impairment which limits your mobility or you live some distance from the Court. You must provide the Court with a telephone number on which you can be contacted on the day of the court hearing.

If you are required to attend the court hearing and fail to do so, the Court may adjourn or dismiss your application.

You need to provide an address where documents can be sent or delivered to you. This may or may not be the address you provided in question 9. If you are the applicant, you must provide an address for service in Australia.

If you have taken all reasonable steps to serve your divorce application on your spouse and you are unable to do so, you can apply to the Court for:

• substituted service, or
• dispensation of service.

For more information on this, see the fact sheet ‘Are you having trouble serving your divorce application?

You need to provide an address where documents can be sent or delivered to you. This may or may not be the address you provided in question 9. If you are the applicant, you must provide an address for service in Australia.

If you have taken all reasonable steps to serve your divorce application on your spouse and you are unable to do so, you can apply to the Court for:

• substituted service, or
• dispensation of service.

For more information on this, see the fact sheet ‘Are you having trouble serving your divorce application?

You must provide the Court with a copy of your marriage certificate. If you do not have your marriage certificate, you will need to get a copy. If you were married in Australia, you can contact the Registry of Births, Deaths and Marriages in the capital city where you were married.

If you cannot get a copy of your marriage certificate, you need to prepare an affidavit and file it with the Court.

You should seek legal advice about how to do this. The affidavit needs to explain the details of your marriage and the reasons why you cannot get a copy of your marriage certificate.

If your marriage certificate is not in English, you need to file:

• an English translation of it, and
• an affidavit from the translator which:
• states his or her qualifications to translate
• attaches a copy of the marriage certificate
• attaches the translated marriage certificate
• states that the translation is an accurate translation of the marriage certificate, and
• states that the attached copy of the marriage certificate is a true copy of the marriage certificate translated.

You can get a copy of an Affidavit Translation of Marriage Certificate from www.familylawcourts.gov.au, by calling 1300 352 000 or at your nearest family law registry.
You cannot sign and file the Application for Divorce until you have been separated from your spouse for at least 12 months. For example, if you separated on 7 November 2005 you cannot apply for a divorce until 8 November 2006. At least one spouse must have regarded the marriage as over and in some way communicated this to the other spouse.

If you are applying on your own, you should not refer to the intention of your spouse unless you can provide further information as to how you knew what your spouse’s intention was at the time.
You should be prepared to provide the Court with information about what happened or what was said on the date of separation to show that one or both of you intended to end the marriage.
It is possible for you and your spouse to be separated but to continue living in the same home during the 12 months before applying for divorce. This is known as ‘separation under the one roof ’. If this applies to your situation, you need to prove to the Court that you were separated during this time.

If you are applying for divorce by yourself, you need to prepare an affidavit. If you are filing a joint application, both you and your spouse need to prepare separate affidavits.

The Court also requires another person (not your spouse) to prepare an affidavit that contains as much information as is known to them about the separation. This requirement applies for both sole and joint applications.

In your affidavit, you need to prove that there has been a change in the relationship, gradual or sudden, demonstrating you and your spouse have separated. For more information about what you need to include in your affidavit, see the fact sheet ‘Separated but living under the one roof ’. The minimum period for separation is 12 months. You can, however, live together as husband and wife for one period of up to three months after separating. If you separate from your spouse for a second time, you can use the time before and after living together as husband and wife to calculate the 12 month separation period.

Example One First separation for six months Together again for three months Final separation for six months

Example Two First separation for three months Together again for two months Final separation for nine months

In both examples, the time of separation totals 12 months. If you and your spouse live together as husband and wife for more than three months and separate for a second time, you must start counting the 12 months separation again.

The Court can only grant a divorce if it is satisfied that:

• a marriage has broken down irretrievably (permanently), and
• there is no reasonable likelihood of the husband and wife resuming married life.

This means that if there is any chance of you and your spouse living together again as husband and wife, the Court cannot grant a divorce.
If you have been married less than two years and want to apply for a divorce, you must either:

• Attend counselling with a family counsellor or nominated counsellor to discuss the possibility of reconciliation with your spouse
OR
• If you have not attended counselling, seek permission of the Court to apply for a divorce.

The two years are calculated from the date of the marriage to the date of applying to the Court for a divorce. You and your spouse must also have been separated for at least 12 months before applying for a divorce.

For more information about marriages of less than two years, see the fact sheet ‘Have you been married less than two years?

The Court can only grant a divorce if it is satisfied that:

• proper arrangements have been made for all children aged under 18 years, or
• there are special reasons why the divorce should be granted even though proper arrangements have not been made.

This means that you need to provide information about who lives, spends time and communicates with the children and about financial support, health and education for all children who are under 18 years listed on the Application for Divorce.

A child of the marriage includes:

• any child of you and your spouse, including children born before the marriage or after separation
• any child adopted by you and your spouse, or
• any child who was treated as a member of your family prior to your final separation; for example, a step-child or foster child.

You must provide the information individually for each child; for example, child one, child two and so on. If you have more than four children, attach an extra page/s and answer the same questions for each child.

If you cannot provide the information yourself, you should make all attempts to find out the information.

For example, by contacting the person with whom the child is living. If you cannot provide the information requested, you should be prepared to tell the Court what attempts you have made to obtain the information. If you are not the child’s birth or adoptive parent/s and do not know who the child’s birth or adoptive parent/s are, insert ‘not known’. You may need to provide the Court with more information. You need to indicate who the child lives with for most of the time. This may be one or both parents or some other significant person in the child’s life; for example, a grandparent or other relative. Provide the address or addresses where the child lives for most of the time. If the child spends equal time or substantial and significant time with both parents, provide both addresses. It is important that you provide current details about the child. You only need to provide a short statement. If you need more space, attach an extra page/s.

Time and communication with the child – state the amount and frequency of time the child spends with the parent (or other significant person) with whom the child does not live. This time may be face to face, telephone, emails, letters or other forms of communication.

Financial support – state who pays for the costs of raising the child; include details of any child support or maintenance being:

• actually paid, or
• agreed, assessed or ordered to be paid and not being paid by any person with whom the child does not live.

Health – provide details of the child’s health and any diagnosis, treatment or ongoing medical needs.

Education – state which school the child attends, the year level and how the child is progressing at school. You should include details of any significant changes planned in the foreseeable future.

For example, a change in living arrangements, schooling or financial support.

HAVE YOU:

• If you are applying on your own, answered all the questions that relate to you and your spouse?
• If you are applying together, answered all the questions that relate to both of you?
• Indicated whether or not you wish to attend the court hearing?
• Provided an address where documents can be sent or given to you? The applicant must provide an address for service in Australia.
• Answered yes or no to ALL the boxes that apply to both you and your spouse about citizenship, residency and where you usually live? You may need to provide the Court with a copy of your Australian citizenship certificate, Australian passport or other proof of citizenship.
• Given the details of your marriage date and place exactly as they are shown on your marriage certificate? You need to provide the Court with a copy of your marriage certificate when you file your divorce application. If your marriage certificate is not in English, filed an English translation of it and an affidavit from the translator?
• If you and your spouse have lived under the one roof for any time during the 12 month separation period, prepared an affidavit yourself and also arranged for an independent person to prepare an affidavit?
• If it has been less than two years since you married, participated in the required counselling and attached the signed counselling certificate or prepared an affidavit?
• Provided details of any other court cases or orders concerning you and your spouse or the children?
• Provided information for each child under 18? If more than four children, have you attached extra pages?
Signed the Application for Divorce before a lawyer, Justice of the Peace, or other person who is authorised to witness affidavits in your state or territory?
• If you are applying on your own, completed the Notice of Application for Divorce?
• Organised the appropriate fee or completed an Exemption form or Waiver of Court Fees form?
• Made two copies of the completed and signed Application for Divorce and any supporting documentation?

Source: Family Law Courts - Application for Divorce Kit