Table of Contents

1. Divorce: A Brief Overview

2. Application for Divorce: A Step-By-Step Guide

3. Divorce Law

4. Property Settlement (‘Splitting Assets’)

5. Spousal Maintenance

6. Parenting (‘Child Custody’)

7. Child Support

8. Family Violence (Intervention Order / AVO / DVO / FVO / FVRO)

9. Bibliography

10. About the Author

 

Last Updated: 1 October 20211
First Published: 23 December 2019

  • Past Updates:

    1. 1 October 2021: removed 'Considerations Before You Apply - Same Sex Couples'.

    2. 23 December 2019: Published 'A Step-By-Step Guide to the Application for Divorce'.

 
 
 
 
 

2. A Step-By-Step Guide to the Application for Divorce

 
Table of Contents

1. A Step-By-Step Guide to the Application for Divorce

1.1. Before You Apply

1.2. Set-Up

1.3. The Application for Divorce

1.3.1. Part A: The applicant(s)

1.3.1.1. Question 1

1.3.1.1.1. Who is/are making this application?

1.3.1.1.2. Will you be applying for a reduction of the filing fee?

1.3.1.2. Question 2

1.3.1.2.1. Do you want to attend the hearing?

1.3.1.2.2. If yes, will you need an interpreter at the hearing?

1.3.2. Part B: Husband and wife

1.3.1.3. Question 3: Family name as used now

1.3.2.4. Question 4: Full given names

1.3.2.5. Question 5: Date of birth

1.3.2.6. Question 6: Country of birth

1.3.2.7. Question 7: If born outside Australia, date you started living in Australia

1.3.2.8. Question 8: What is your occupation

1.3.2.9. Question 9: Residential address

1.3.2.10. Question 10: Address for service

1.3.3. Part C: Jurisdiction

1.3.3.1. Question 11: Jurisdiction

1.3.4. Part D: Marriage and Separation

1.3.4.1. Question 12:

1.3.4.1.1. Date and place of marriage on your marriage certificate

1.3.4.1.2. Do you have a copy of your marriage certificate?

1.3.4.1.3. Is your marriage certificate in English?

1.3.4.2. Question 13: Full name of both parties as they appear on the marriage certificate

1.3.4.3. Question 14: Date of separation

1.3.4.4. Question 15: At the date of separation did you regard the marriage as over?

1.3.4.5. Question 16: Since the date of separation, have you and your spouse lived together in the same home but not as husband and wife?

1.3.4.6. Question 17: Since the date of separation, have you and your spouse lived together as husband and wife?

1.3.4.7. Question 18: Do you think it is likely that you and your spouse will live together again as husband and wife?

1.3.4.8. Question 19:

1.3.4.8.1. At the date of filing this application, is it less than two years since you married?

1.3.4.8.2. Have you attended counselling with a family counsellor?

1.3.4.8.3. If you did not attend counselling, are you seeking permission of the Court to apply for divorce less than two years from the date of marriage?

1.3.5. Part E: Other court cases

1.3.5.1. Question 20: Pending cases - Are there any current or pending cases in this or any other court about family law, child support, family violence or child welfare involving any of the parties and/or children listed in this application?

1.3.5.2. Question 21: Existing orders - Are there any existing orders, binding agreements, parenting plans or undertakings to a court about family law, child support, family violence or child welfare involving any of the parties and/or children listed in this application?

1.3.6. Part F: Children

1.3.6.1. Question 22: Are there any children currently under 18 who:

1.3.6.1.1. are children of you and your spouse?

1.3.6.1.2. were treated as members of your family when you and your spouse separated?

1.3.6.1.3. how many children?

1.3.6.2. Question 23: Child's details

1.3.6.3. Question 24: Name of father

1.3.6.4. Question 25: Name of mother

1.3.6.5. Question 26: Who does the child live with?

1.3.6.6. Question 27: Child's address

1.3.6.7. Question 28: Current details for the child

1.3.6.7.1. Time and communication with the child

1.3.6.7.2. Financial support

1.3.6.7.3. Health

1.3.6.7.4. Education

1.3.6.8. Question 29: Do you plan to make any changes to these current arrangements?

2. Bibliography

2.1. Legislation

2.2. Cases

2.3. Textbooks & Books

2.4. Online Legal Commentary

2.5. Websites

2.6. Miscellaneous

3. About the Author

Step 1. Considerations Before You Apply - Sole or Joint Application


Before you apply, consider whether you will complete the divorce application by yourself (sole application) or together with your spouse (joint application).

If you file the application yourself (sole application):

  • The divorce documents will need to be served on your spouse.

  • You will be required to attend court if there are children under the age of 18. You will not need required to attend court if you have no children under the age of 18.

  • Your spouse has the option to oppose the divorce.

 

If you file the application with your spouse (joint application):

  • The divorce documents will not need to be served on your spouse.

  • Your spouse will need to sign the divorce application.

  • You will not be required to attend court. Except, if you want to attend the court hearing and you choose this option in your divorce application.

 

You do not need to know the details and processes in relation to the options above, as this will be explained throughout this guide, but, you do need to decide now whether you will be a sole applicant or a joint applicant.

Step 2. Set-Up

An application for divorce is completed online through the Commonwealth Courts Portal. If you do not have an account with the Commonwealth Courts Portal, you will need to create one. To create an account, go to the Commonwealth Courts Portal and click ‘Register Now’. See Image Below.

 

Step 3. Set-Up

Complete details on the registration page. See image below as an example.

 

Step 4. Set-Up

Click ‘Start a new file’ located under Your files > Family Law eFiling > Start a new file. See image below.

 

Step 5. Set-Up


Click ‘Confirm’ to confirm that you are filing the application for divorce and not on behalf of another person.

 

Step 6. Set-Up

Read your obligations, click the box, then click ‘Confirm’.

 

Step 7. Set-Up

Click ‘Search for a document’ then click ‘Application for divorce.’ Under ‘Which court do you want to file in?’, click ‘Federal Circuit Court’ if you live in Australian Capital Territory, Queensland, New South Wales, Northern Territory, South Australia, Tasmania, or Victoria. Click ‘Family Court of Western Australia’ if you live in Western Australia.

 

Step 8. Set-Up

Add your own custom title and description. People may multiple applications, such as for children and property, and so this section is designed to help you easily identify this application if you happen to exit the website and re-enter at a later date.

 

When you re-enter the Commonwealth Courts Portal, your application for divorce will appear under: File access > Partly completed applications > Application for Divorce. See image below.

 

Step 9. Application for Divorce: Part A

We are now up to the application for divorce. There are 36 questions broken into 6 parts. Start by clicking ‘Part A The Applicant(s)’. See image below.

 

Step 10. Application for Divorce: Part A: Question 1

“Who is/are making this application?”



If you apply for a divorce without your spouse, this is called a ‘sole application.’ The spouse which applies for the divorce, is called the ‘applicant.’ The other spouse is called the ‘respondent’. For a sole application, you will need to serve documents on your spouse. This process will be explained in greater detail later in this guide. If you do not know an answer to a question and you have made all attempts to find the answer, answer the question with ‘not known’.


If you apply for a divorce with your spouse, this is called a ‘joint application’. You will not need to serve documents on your spouse, but your spouse will still need to sign documents. This process will be explained in greater detail later in this guide. For a joint application to practically work, (1) you and or spouse could fill the application together, or (2) you can fill as many questions as you can and leave the questions relating to your spouse for your spouse to complete later, or (3) you can complete the entire application yourself and have your spouse check all the answers.


The for joint application, the question ‘If joint application, are you, or are you acting for’ is asking which spouse is completing the application. The phrase ‘or are you acting for’ is in relation to a lawyer acting on behalf of their client.

“Will you be applying for a reduction of the filing fee?”

 


The fees for filing an application for divorce are:

  • Full fee: $910

  • Reduced fee: $305 

To be eligible for the reduced fee, you must qualify either for ‘General’ or ‘Financial Hardship’. For a joint application, both you and your spouse must qualify or the full fee must be paid. See image below.

  • For 'General':

 
 
 
 
 
 

      • Any other card that entitles the person to Commonwealth health concessions.

    • Or, you must be receiving Youth Allowance, Austudy, or ABSTUDY payments from Centrelink.

    • Or, you must have been granted legal aid, including:

 
 
 
 
 
 
 
 
 
 
 
 
 
 

  • Or, financial hardship:

    • To qualify for financial hardship, the full fee must cause financial hardship. The Registrar or an authorised officer will consider your income, day-to-day living expenses, liabilities and assets and then form the opinion of whether the general fee would in fact cause financial hardship.

    • To determine whether you are likely to be eligible for financial hardship:

      • The following table provides the maximum income you can receive per week.1 If you earn more than this, may not be eligible.

  • "This income test is calculated on your gross income. Income includes:

    • employment income - wages, salary and self-employment income

    • employer provided fringe benefits

    • rental income

    • reportable superannuation contributions (salary sacrifice)

    • Centrelink pensions or benefits and some supplementary payments

    • Department of Veterans' Affairs payments

    • deemed income from financial investments such as bank accounts, managed investments and shares

    • Income from income stream products such as allocated pensions, annuities, and superannuation pensions

    • foreign income

    • private trusts and companies

    • compensation

    • New Enterprise Incentive Scheme

    • Paid Parental Leave

    • lump sum payments such as redundancy, leave or termination payments"


    Reference: Guidelines for reduced fee - divorce and decree of nullity application by the Federal Circuit Court of Australia

 
Number of People Who Are Dependent on You Maximum Income Each Week (Before Tax)
0 $701.25
1 $1,211.25
2 $1,253.75
3 $1,296.25
4 $1,338.75
5 $1,381.25

      • Your liquid assets must not total more than $4,550. Liquid assets is your cash, convertible shares or convertible bonds.

      • After all your day-to-day expenses and liabilities are paid, you cannot have a surplus of more than $227.50 per week. Expenses may include, for example, food, rent or home mortgage payments, credit card debts, other loan or lease repayments, electricity, phone, running a car, etc.

      • You may still be granted 'Financial Hardship' even if you fail the above requirements. For this to occur, you must explain that your circumstances are such that paying the full fee would cause financial hardship. For example, your income may me higher than the maximum but your daily expenses are also very high. Or, as another example, you have a number of liabilities which are not being met. The form which you will need to complete is explained below.

Payment for the application for divorce must be made online by MasterCard or Visa.

Providing Evidence and Uploading Documents

If you want to apply for the reduced fee, you will need to provide evidence. In the commonwealth Courts Portal, go to your divorce application. See image below.

a) If you chose the ‘General’ option, click ‘Proof of Eligibility for a fee reduction’. See image below.

Here, you will need to upload your evidence and choose which kind of evidence. See image below.


Evidence will differ depending upon your eligibility. For Centrelink, evidence could include as an example, your Health Care Card, Pensioner Concession Card, Commonwealth Seniors Health Card, or other Commonwealth Card. For Legal Aid, evidence could include a letter establishing that you have received Legal Aid.


You will need to upload your evidence as PDF. Here are some example ways to do this:

  • You could use an app on your phone which takes photos and converts those photos as PDF. For example, the app called TurboScan. Then, you could send yourself the PDF and upload load it to the above page via your computer.

  • You could scan the evidence with a printer that has an inbuilt scanner. Then, you could send yourself the PDF and upload load it to the above page via your computer.


b) If you chose the ‘Financial Hardship’ option, click ‘Application for reduction from fees - hardship’. If previously chose to be a sole applicant, only you, the applicant, will need to complete the form. However, if you chose to be a joint application, both you and your spouse will need to complete the form.

The form which you will need to download and complete is titled: ‘Application for reduction of payment of divorce or decree of nullity - financial hardship’. The financial hardship application should match the images below.

The financial hardship application is straightforward. However, the are a few questions to take note of.

Firstly, if you are in Western Australia, tick the box ‘Family Court’. If you are in all other states and territories, check the box ‘Federal Circuit Court. See image below.

Secondly, check the box ‘No’ for the question, ‘Is this an application for a decree of nullity’. See image below.


Once you have completed the application, you will need to upload it to the Commonwealth Courts Portal. To do this, click ‘Application for reduction from fees - hardship’. See image below. Remember, for a sole application, only the applicant needs to complete the form and for a joint applicant, both spouses need to complete the form.

You will need to upload the documents as PDF. See image below.

 

References.1

Step 11. Application for Divorce: Part A: Question 2

“Do you want to attend the hearing?”

 


The word ‘hearing’ is just a formal term for ‘court’. In some cases, you will be required to attend court, but, in the circumstance that you are not required, you may want to attend court anyway.


For a sole application:

  • You will be required to attend court if there are children under the age of 18.

  • You will not need required to attend court if you have no children under the age of 18.

For a joint application:

  • You will not be required to attend court.


If you would like to attend court but you cannot be there in person, you may apply to attend court by phone or video conferencing. You must complete the form Telephone/Video Link Attendance Request. Your form should match the images below.

The court may consider the following factors when determining whether to grant the request:

  • Whether there is a long distance between your residence and the court.

  • Whether you have difficulty attending due to a disability or illness.

  • Whether you have concerns about your safety, such as family violence.

  • Whether your spouse objects to the request.

  • The expense associated with attending.

  • The expense or savings associated by using electronic communications.

Additional Information:

  • You must notify your spouse of this request.

  • You must file the request at least 5 days before your court hearing.

  • If the court has not confirmed your request, you should follow up with an email. To find the court’s contact details, you will need to find the specific court. The Federal Circuit Court provides a list of locations.

  • You cannot file this request at the current point in time.

    • If you are a sole applicant, the Federal Circuit Court recommends that you file this request after you have served the divorce documents on your spouse. The Law Project will remind you later in this guide to file this request.

If you are in Western Australia, you must instead complete the form Request to Attend by Electronic Means. Your forms should match the images below.

 
 

The information above applies to Western Australia, however, there are a few additional details. Firstly, check the box for the Family Court of Western Australia. See image below.

Secondly, for ‘Part D: Details’, select ‘Hearing’. See image below.

“If yes, will you need an interpreter at the hearing?”

 

It is important that you can communicate with the court and understand everything which will be said. This means, if your English is not strong, your should request an interpreter. If you are a sole applicant, you can only request an interpreter for yourself and not your spouse. If you are a joint applicant, you can request an interpreter for both you and your spouse.

References.1

Step 12. Application for Divorce: Part B

We are now up to Part B. To start Part B, you can either click ‘Next - Husband and wife’ located at the bottom right hand side of the page. See image below.

Or, you can return to the Application for Divorce and click ‘Part B Husband and wife’ See image below.

Step 13. Application for Divorce: Part B: Question 3

“Family name as used now”

You must provide your last name as it is now in relation to this marriage, not for example, your maiden name. See example below.

Step 14. Application for Divorce: Part B: Question 4

“Full given names”

‘Full given names’ includes your middle names. Your names should be the same names which are your birth certificate, drivers license, passport, or other formal documents. See example below.

Step 15. Application for Divorce: Part B: Question 5

“Date of birth”

The order of numbers should be [day] [month] [year], for example, [31] [01] [1984]. If, for whatever reason, you do not know your spouse’s date of birth, tick the box, ‘Unknown. See example below.

Step 16. Application for Divorce: Part B: Question 6

“Country of birth”

See example below.

Step 17. Application for Divorce: Part B: Question 7


“If born outside Australia, date you started living in Australia”


The order of numbers should be [day] [month] [year], for example, [25] [03] [1991]. See example below.


Step 18. Application for Divorce: Part B: Question 8

“What is your occupation”

If you are retired, insert ‘Retired’. If you are a stay-at-home Mum or Dad, insert ‘Home Duties’. See example below.

Step 19. Application for Divorce: Part B: Question 9

“Residential Address”

If you are concerned for your safety, for example, due to family violence, you should check the box ‘I do not want my residential address to be disclosed’ and or ‘Do not disclose’ for contact numbers. If you do not know your spouse’s address or you do not want to provide your address, check the ‘Unknown’ option. If you check the ‘Unknown’ option for your own residential address, the court will instead contact you via the address you provide for serving documents at Question 10. The option ‘Care of’ means, the address of the person or institution who has the care of you or your spouse, for example, a nursing home.

Step 20. Application for Divorce: Part B: Question 10

This question asks for the address which documents can be served. If your address to be served is the same as your residential address, select ‘Same as residential address’. Your residential address must be an Australian address. If you do not know the address to serve documents on your spouse, and you have made all reasonable attempts to find it, select ‘Unknown.’ If documents cannot be served on your spouse, for example, they have fled the country and can’t be found, you will need to apply for either ‘substitute service’ or ‘dispensation of service’. This process will be explained later in this guide in the section title ‘xyz’. If the address to be served is your lawyer or your spouse’s lawyer, select ‘Lawyer’s address (below)’.

Additional Notes:

  • ‘DX’ = Document Mail Exchange which is a service used to deliver documents.

  • If you, your spouse, or the law firm do not have Fax or DX, insert ‘N/A’.

See example below.

Step 21. Application for Divorce: Part C


We are now up to Part C. To start Part C, you can either click ‘Next - Jurisdiction’ located at the bottom right hand side of the page. See image below.

Or, you can return to the Application for Divorce and click ‘Part B Husband and wife’ See image below.

Commonwealth Courts Portal - Application for Divorce - Part C Jurisdiction.png

Step 22. Application for Divorce: Part C: Question 11

The court does not have the power to order a divorce if neither you or your spouse has a connection to Australia. For the court to order a divorce, the court must have jurisdiction over at least one person to the marriage. Even if you were married in Australia, this does not automatically mean the court has jurisdiction. On the other hand, if you were married overseas, you may be able to divorce in Australia.

You must answer each question where the Commonwealth Court Portal allows.

“a. regards Australia as his/her home and intends to live indefinitely in Australia”

  • To choose this option, (1) you must be lawfully in Australia, and (2) you must intend to continue to live in Australia.

    • For (1), the court may require evidence, for example, a visa, or Australia citizenship documents.

    • For (2), the court may require evidence that you have lived in Australia and in likely to continue living in Australia. For example, telephone bills, water bills, electricity bills, rent receipts, income tax, or government correspondence. These documents should be in your name and address.

  • If you are a sole applicant, you cannot choose this option for your spouse unless you can prove the intentions of your spouse.

“b. is an Australian citizen by birth or descent”

  • Normally, you are an Australian citizen by birth if you were born in Australia and at the time of birth at least one parent was an Australian citizen or permanent resident.

  • Normally, you are an Australian citizen by descent you were born outside Australia but at least one parent was an Australian citizen and registered your birth in Australia.

“c. is an Australian citizen by grant of Australian citizenship”

  • To choose this option:

    • You and/or your spouse must have a certificate of Australian citizenship.

    • You must provide the Court with a copy of you and/or your spouse’s Australian citizenship certificate, Australian passport or other proof of citizenship.

“d. ordinarily lives in Australian and has done so for 12 months immediately before filing this application”

  • To choose this option, you and/or your spouse must have lived in in Australia for a continual period of 12 months before filing this application for divorce. However, it is fine to have had temporary periods of absence from Australia, for example, an overseas holiday or business trip.

  • The court may require evidence, for example, a visa, or Australia citizenship documents.

  • The court may require evidence that you and/or your spouse have lived in Australia. For example, telephone bills, water bills, electricity bills, rent receipts, income tax, or government correspondence. These documents should be in your name and address.

See example below.

 

References.1

    • Commonwealth Courts Portal, Part C. Jurisdiction (Webpage).

    • Family Law Act 1975 (Cth), s 39(3).

    • The College of Law, Victoria Practice Papers 2019-2020 (LexisNexis Butterworths, 2019) vol 1, [F101.105].

Step 23. Application for Divorce: Part D

We are now up to Part D. To start Part D, you can either click ‘Next - Marriage and Separation’ located at the bottom right hand side of the page. See image below.

Or, you can return to the Application for Divorce and click ‘Part D Marriage and Separation’. See image below.

Step 24. Application for Divorce: Part D: Question 12

“Date and place of marriage on your marriage certificate”


The order of numbers should be [day] [month] [year], for example, [25] [03] [2005]. See example below.


“Do you have a copy of your marriage certificate?”

You need to upload a copy of your marriage certificate. If you do not have a copy of your marriage certificate and you were married in Australia, you need to contact the Registry of Births, Deaths and Marriages in your state:

If you cannot obtain a copy of your marriage certificate, you must file an affidavit outlining the details of your marriage and explaining why you cannot get a copy of your marriage certificate. The Commonwealth Courts Portal recommends that you get legal advice.

The following is an example affidavit for the circumstance that you cannot obtain a copy of your marriage certificate. This affidavit was found in the Australian Encyclopaedia of Forms & Precedents published by LexisNexis. It was authored by Emma Heuston from The Remote Expert, reviewed for Western Australia by Sarah Bright, updated by Megan Sweetlove from Sweetlove Family Law, and edited by John Spender from Kennedy Partners Lawyers.

 
Example Affidavit for a Lost Marriage Certificate

  1. I am the [wife/husband] in these proceedings for divorce.

  2. My date of birth is [date].

  3. The respondent [husband/wife] is [name] and was born on [date] (Respondent).

  4. The Respondent and I:

    1. commenced a relationship in or around [date] and began to cohabit [date];

    2. were married on [date]; and

    3. separated on [date].

  5. I have not seen our marriage certificate since [date] [optional: and I have not had any reason to locate it prior to making this application].

  6. [Describe the attempts to locate the marriage certificate, eg “I have made attempts to locate our marriage certificate at the former matrimonial home where we last resided for X years but it cannot be found.”]

  7. [Describe any circumstances that may explain the disappearance of the certificate, eg “On date X there was a fire at the former matrimonial home and various documents were lost including our marriage certificate” or “On date X the former matrimonial home was sold after separation. The Respondent and I divided the household contents and personal effects between us. I have not seen our marriage certificate since that date.”]

  8. [Optional: I have made attempts to obtain a replacement certificate from [registry]. Annexed and marked “A” is a copy of [document proving application for replacement certificate]. Annexed and marked “B” is a copy of [document proving replacement certificate cannot be provided].]
 

“Is your marriage certificate in English?”

 

If your marriage certificate is not in English, you must do the following:

  1. File a translation of your marriage certificate in English.

    1. File an affidavit completed by the translator. The affidavit should include:

      1. The translator's qualifications.

      2. A copy of the marriage certificate.

      3. The translated marriaged certificate.

      4. The translator must state that the translation is an accurate translation.

      5. The translator must state that the copy of the marriage certificate is in fact a true copy of the marriage certificate.

The form for the affidavit is called Affidavit Translation of Marriage Certificate. Check that your form matched the image below.

 
 
 

Step 25. Application for Divorce: Part D: Question 13

“Full name of both parties as they appear on the marriage certificate.”

The names you provide must be the same as they appear on the marriage certificate. See example below.

Step 26. Application for Divorce: Part D: Question 14

“Date of separation”

You must be separated for at least 1 year before you can apply for a divorce. For example, if you separated on 28 October 2019, you cannot separate until 29 October 2020. If you have not been separated for at least 1 year, your application will be rejected.

You are able to be get back together with your spouse for a short period and separate again. This point will be addressed in further detail in question 17 of the divorce application. You may be able to live in the same house together with your spouse and for this to be counted as ‘separation’. This point will be addressed in further detail in question 16 of the divorce application.

The order of numbers should be [day] [month] [year], for example, [31] [01] [2018]. See example below.

Step 27. Application for Divorce: Part D: Question 15

“At the date of separation did you regard the marriage as over?”




You and/or your spouse must have regarded the marriage as over at the date of separation. You and/or your spouse must have communicated in some way to the other spouse that your marriage is over. If you are a sole applicant, you should not refer to your spouse’s intention to end the marriage, unless you can provide further information as to how you knew what your spouse’s intention was at the time. You may need to provide the court with details about what was said or what happened at the date of separation to show that your and/or your spouse intended to end the marriage.

Step 28. Application for Divorce: Part D: Question 16




“Since the date of separation, have you and your spouse lived together in the same home but not as husband and wife?”



You are lawfully able to live under the same roof and for this to constitute ‘separation’. This may include living in the same house for some or all of the time that you were separated. See example below. 6

However, if you did live under the same roof while separated, you must provide extra information. If you are a sole applicant, you must (1) file an affidavit yourself, and (2) file an affidavit created by an independent person, such as a friend, verifying that you were separated. If you are a joint applicant, you must (1) both individually file an affidavit, or (2) if only one spouse can file an affidavit, for whatever reason, one of you must (a) file an affidavit, and (b) file an affidavit created by an independent person, such as a friend, verifying that you were separated.

An affidavit is document presenting all the relevant information and you swear that the provided information is true. Note that each person who writes an affidavit may be requested by the court to attend court and they be subsequently questioned on their truthfulness. It is a criminal offence to provide false information and the penalty may be imprisonment.

You only need to provide the addition information if you were lived together within the 12 month separation period. If you lived apart for over 12 months, you do not need to provide additional information. The following examples illustrate this rule:

  • Example 1: James and Elizabeth were separated for 5 years. For the first 3 years, they lived together in the same apartment, however, for the last 2 years, they lived in separate houses. As they have been living apart for over 12 months, James and Elizabeth do not need to provide extra information.

  • Example 2: James and Elizabeth were separated for 14 months. For the first 5 months, they lived together in the same apartment, however, the last 9 months they lived in separate houses. While they have been separated for over 12 months, they have not been living apart for 12 months. As such, James and Elizabeth must provide additional information.

What the Court May Consider

The court will consider a range of factors to determine whether you were in fact separated while living under the same roof. Some factors which may indicate that you were separated, but are not conclusive, include:

  • You and your spouse slept in different rooms after separation;

  • You and your spouse reduced or stopped shared activities or family outings after separation;

  • You and your spouse reduced or stopped doing household duties for each other after separation. However, by law, you are able to continue with sharing some household duties after separation, such as ironing, washing, etc.;

  • You and your spouse reduced or stopped sharing meals together after separation;

  • You and your spouse reduced or stopped going shopping together after separation;

  • You and your spouse reduced or stopped entertaining friends together after separation;

  • You and your spouse reduced or stopped going out together;

  • You and your spouse reduced or stopped having sex after separation;

  • You and your spouse divided the finances after separation, such as separate bank accounts;

  • You and your spouse notified your friends and family that you had separated; and

  • You and your spouse intend on moving out in the near future, if you haven’t already. If you intend on living together indefinitely, the court may interpret this to indicate that you may get back together.

What to Include in Your Affidavit

The Federal Circuit Court of Australia provides a short guide on what you need to state in your affidavit. You must prove:

“...that there has been a change in the marriage, gradual or sudden, showing you and your spouse have separated.”

To do this, you will need to explain the following:

  • “[Any] change in sleeping arrangements[;]

  • [Any] reduction in shared activities or family outings[;]

  • [Any] decline in performing household duties for each other[;]

  • [Any] division of finances; for example, separate bank accounts ... [;]

  • [A]ny other matters that show the marriage has broken down; for example, if you have notified family and friends of your separation[;]

  • Why you continued to live in the same home following separation and what intention, if any, you have of changing the situation[;]

  • Living arrangements you made for any child of the marriage under 18 years during the time you were living under one roof[; and]

  • What government departments you have advised of your separation if you receive a government benefit; for example, Centrelink or the Department of Human Services (Child Support). If correspondence has been received from these departments about your separation, attach a copy to your affidavit.”

You should explain what your marriage was like before separation and what it was like after separation.


For the witness affidavit, the witness must be over 18 years old and someone who knew you during the marriage and during separation. This could include, for example, a friend, a family member, or a co-worker. The witness must explain what they saw first hand during the separation. The witness’s affidavit should corroborate your affidavit.


Affidavit Forms


Download the affidavit document from the Federal Circuit Court of Australia and edit it in Microsoft Word or in another similar program. Read and follow the instructions on the first page called ‘Instructions for completion’. Your document should match the images below.

Example Affidavits - Spouse

Dr Maree Livermore in her book The Family Law Handbook, 5th Edition provides an example affidavit. You can find Dr Livermore at Aequitas Collaborative and Marrickville Legal Centre.

 
Example 1: Separation Under the One Roof - Spouse

I, MARY ANN BLACK of 75 Risalt Street, Tadbugnall in the State of New South Wales salesperson, make oath and say/affirm as follows:

  1. I am the applicant for the dissolution of my marriage to Daniel John Black (“Daniel”).

  2. Daniel and I were married on 29 January 1990.

  3. There are two children of our relationship: Samuel Black, born 6 June 1995 and Anna May Black, born 5 May 1997.

  4. Daniel and I lived together with our children at 36 Antonen Road, Tadbugnall, New South Wales ("the marital home”).

  5. I am 40 years of age and am employed full-time as a jewellery salesperson at David Jones in Tadbugnall. My average weekly income is approximately $1150.00 gross. I have no other income.

  6. Throughout our marriage and until our separation, my salary was deposited each fortnight into a joint account in both Daniel's and my name at the Commonwealth Bank, Tadbugnall. The mortgage and all the housekeeping expenses were paid from this account with free access to the account available to both of us.

  7. Since our marriage, Daniel has not been formally employed nor earned an independent income.

  8. In the course of our marriage, Daniel cooked on weeknights for the whole family and did most of the housework and laundry.

  9. After experiencing difficulties within our marriage for some months previously, Daniel and I had a heated argument on 3 March 2005. At the end of it, I screamed at him: “I've had enough. We're finished.”

  10. At this point on 3 March 2005, I regarded my marriage to Daniel as over. We remained separated under one roof without reconciling until 12 December 2005.

  11. On 4 March 2005 I moved all of my clothes and personal possessions out of our double bedroom and into the spare bedroom. I have not slept with, nor had sexual relations with, Daniel since that time.

  12. Daniel and I have danced as partners in ballroom dancing title competitions throughout NSW since 1992. Ballroom dancing has been a very important part of our life together.

  13. On 4 March 2005 I attended at the RSL hall where our team rehearses each week and put up a notice advising that I would no longer be dancing with Daniel and asking for potential new dance partners to contact me directly. I have not danced with Daniel, competitively or otherwise, since our separation.

  14. Also on 4 March 2005, I closed the joint account, and arranged for my pay to be deposited to an account in my name only. I arranged to pay the mortgage directly from my account and gave Daniel $600 in cash each payday from 10 March 2005 until my child support assessment in January 2006 for food and housekeeping expenses for himself and the children

  15. After our separation, we did not eat together as a family anymore. I prepared my own meals late in the evening or ate out and I looked after my own washing. Daniel continued to do most of the other housework.

  16. Between 3 March and the end of November 2005. I tried unsuccessfully to find affordable, alternative accommodation near to the marital home so that I could continue to see the children easily.

  17. In early December 2005, I found a unit at my current address in Risalt Street, Tadbugnall, which is only a few minutes drive from the marital home. I moved in on 12 December 2005.
 


The College of Law also provide an example affidavit in their book Victoria Practice Papers 2019-2020, Volume 1 at F101.420.

 
Example 2: Separation Under the One Roof - Spouse

I, Ann Abrahams of (address), Sales Assistant, make oath and say:

  1. I am the Applicant in this application for divorce.

  2. For some years prior to 7 January 20xx–1, I felt my relationship with the husband had deteriorated. On 7 January 20xx–1, I had a discussion with the husband about our relationship. At the conclusion of that discussion I decided that the marriage had finished and that we should terminate the marriage.

    I said to the husband:

    “Look, the marriage is finished as far as I'm concerned. Why don't we go our separate ways.”

    The husband said:

    “That's all right with me.”

  3. From 7 January 20xx–1, the husband and I continued to live together in the former matrimonial home until 4 April 20xx–1 when he left that home. We have not subsequently lived in the same home.

    4. When we lived together in the former matrimonial home following separation we resided together in the home in the circumstances set out below.

  4. Prior to 7 January 20xx–1, the husband and I slept in the same bed, engaged in sexual intercourse, went out socially together, paid all expenses from a joint bank account, ate meals together and shared household tasks.

  5. On 7 January 20xx–1, the husband moved into the study at the former matrimonial home where he slept until he left the home on 4 April 20xx–1.

  6. From 7 January 20xx–1, we did not have meals together except on one or two isolated occasions. The husband prepared his own meals, made his own bed and cleaned the study where he slept. I cleaned the rest of the house and I did all the washing and ironing. I also purchased all food for the three members of the family from the money made available by the husband being $200 per week.

  7. On 8 January 20xx–1, we closed our joint bank account and opened separate accounts. We have subsequently kept our financial arrangements entirely separate except for the husband's contribution to housekeeping expenses as I have already mentioned.

  8. Within a few days after 7 January 20xx–1, I informed my family and close friends of the separation. The husband and I have not subsequently been out socially together or entertained at home at all.

  9. Apart from a parent/teacher interview at Julie's school in mid-February 20xx–1, the husband and I have not jointly attended any function or engagement since 7 January 20xx–1.

  10. From 7 January 20xx–1, the husband and I have not discussed anything between ourselves except those matters concerning Julie's welfare and the necessities of day-to-day living.
 
 

Legal Aid New South Wales also provides an example affidavit.

 
Example 3: Separation Under the One Roof - Spouse

  1. I am the Applicant [Husband/Wife] in these proceedings.

  2. I was born on [full date of birth] in [location] and I am [XX] years of age. I came to Australia on or around [year] and I am now an Australian citizen [or state your migration status].

  3. The Respondent [Husband/Wife] is [full name] [Write the name of the Respondent and then use this name throughout the Affidavit where it says ‘Respondent’]. [Respondent] was born on [full date of birth] in [location] and is [XX] years of age and is also an Australian citizen.

  4. [Respondent] and I met around [date] and were married on [date] in [location].

  5. [Respondent] and I separated on a final basis on [date], and we continued to live at the same address at [address] from [date] to [date] until he/she/I moved out to [address].

  6. There are [X] child/ren of the marriage. They are [list full names and dates of birth and current ages for each child of the relationship, including stepchildren].

Our marriage before separation

  1. During our marriage, I cooked for [Respondent] and washed and ironed their clothes [describe any other household tasks you shared or did for each other whilst together].

  2. [Respondent] and I would visit friends and sometimes they would come to our home [give examples].

  3. We also travelled as a family [give examples].

  4. We have a joint bank account and we [bought/rented] our home in our joint names.

  5. During our marriage, we slept in the same bed and had a sexual relationship/we had been living in separate bedrooms under the one roof for many years.

Marriage after separation

  1. [Describe what happened on your date of separation. Did you have an argument on the telephone? Did you have a discussion and decide how to tell the children and family and friends? Were police or family members involved on that day? Did you write text messages or emails saying the marriage had ended? State the facts as best as you can remember. If you are reporting a conversation use direct language, eg:]

    On [date], [Respondent] and I were at [location] and I remember we had a conversation with words to the effect of:

    Me: “This isn’t working, our marriage is over.”

    [Respondent]: “I agree. I will move my stuff into the spare bedroom until I can find my own place.”

    Use the words that you each said [as far as you can remember] to show that you believed each of you knew the marriage ended on that date.

    [Then, explain how the relationship changed from what it was before. For example:]

  2. Since the date of separation [Respondent] moved into a separate bedroom.

  3. I continue to cook for our family but [Respondent] eats separately and often eats out of the home.

  4. I have stopped washing and ironing [Respondent]’s clothes and doing other household chores for [Respondent].

  5. Since separation, I have done my own shopping and washed my own clothes.

  6. [Respondent] and I no longer socialise as a couple and do not visit friends together, or celebrate family occasions like Christmas or birthdays.

  7. [Respondent] and I have separate bank accounts and we split all our bills for the children.

  8. [Respondent] and I do not usually speak to each other unless it relates to the [children/household bills/discussions about moving].

  9. Around [date], I told my close friend [friend’s full name] who lives in [location] that [Respondent] and I had separated. I remember I said words to the effect of “[Respondent] and I have decided to separate since last month. I moved out to the spare room and I need to find a new place to stay.”

  10. Since we became separated under the same roof, [Respondent] and I have not spent time or socialised with each other except for the children’s birthdays. Sometimes we have done things together for the home but it was as housemates, not as a husband and wife.

  11. When we separated I told Centrelink/other agencies about the separation. [Describe how you informed Centrelink or other agencies about the separation.]

[Also describe when you or the other person moved out. For example:]

  1. On [date], I moved to [new address] and [Respondent] and I divided our things. We are currently working out a financial settlement between us with lawyers.

[Or, if you can’t move, explain why you are still living under one roof.]

  1. Both [Respondent] and I receive Centrelink income and have applied to the Department of Housing to find new accommodation. I have looked at the rental properties available that are nearby to the children’s school but they are [$dollars] per week and I only receive [$dollars]. So I cannot afford to move out yet.
 

Example Affidavits - Witness


Dr Maree Livermore in her book The Family Law Handbook, 5th Edition provides an example affidavit of a witness. You can find Dr Livermore at Aequitas Collaborative and Marrickville Legal Centre.


 
Example 1: Separation Under the One Roof - Witness

I, EVA LARSON of 24 Gidibal Street, Tadbugnall in the State of New South Wales, dance teacher, make oath and say/affirm as follows:

  1. I am a friend of both Daniel Black (“Daniel”) and Mary Black (“Mary”). I first met them as my next-door neighbours in Antonen Street, Tadbugnall in 1991.

  2. I introduced Daniel and Mary to competitive ballroom dancing. Between 1992 and March 2005, they danced as a couple with the dance team the Tea-Trees that I founded and continue to manage.

  3. On Thursday 5 March 2005 I went to the RSL hall for rehearsals as usual. Mary handed me a piece of paper. Her name and signature were at the bottom of the page. The document was headed “Public Notice” and included words to the effect: “Daniel and I will no longer be dance partners. If anyone else is interested in partnering me in the Samba section at the upcoming Regional titles, please contact me directly.”

  4. Neither Daniel nor Mary attended at rehearsal that night. Daniel has not attended club activities since that time. Mary found a new partner and continues to compete with the team.

  5. On 15 November 2005, being the weekend after the Regional Dance Championships, I pulled up outside 36 Antonen Street to drop Mary back after a rehearsal. She hesitated before opening the car door, staring through the window at the house. The front room was clearly full of people. Mary said: “I'll have to go round the back.” I said words to the effect: “Mary this is ridiculous, you can't continue to live like this.” She replied: “I know – but I am looking for places all the time. Something has to come up soon.”

  6. On 14 January 2006, at rehearsal, Mary handed around a little card with her new address in Risalt Street on it.

  7. I believe that Daniel and Mary were living separated under one roof at the Antonen Street house between early March and late December 2005.
 


The College of Law also provide an example affidavit of a witness in their book Victoria Practice Papers 2019-2020, Volume 1 at F101.425.


 
Example 2: Separation Under the One Roof - Witness

I, Muriel June Hoskins, of (address) Sales Assistant make oath and say,

  1. I have known Robert Abrahams and Ann Abrahams for approximately 10 years.

  2. I first met Ann Abrahams when I worked with her at (location) and I met Robert Abrahams (the husband) shortly before they married.

  3. My husband Keith Hoskins and I moved next door to Robert and Ann approximately 6 years ago. At that time Ann and I were no longer working together.

  4. Prior to 8 January 20xx–1, I visited Robert and Ann's home on many occasions and observed both their clothes in the main bedroom. They both attended dinner and theatre parties with us from time to time.

  5. On 8 January 20xx–1, I had a conversation with Ann who said to me:

    “Robert and I decided to separate last night. We both agreed our marriage had finished and we can now go our separate ways. Neither of us can afford to move out at this stage but hopefully I can get a job and Robert can find an alternative place to live.”

    I said:

    “I'm sorry to hear that, but hope I can be friends with you both.”

    Ann replied:

    “Yes, so do I.”

  6. Since 8 January 20xx–1, I visited (address of former matrimonial home) on several occasions and observed that Robert’s clothes and personal effects were in the study.

  7. Both Keith and I have been out with Ann and Robert individually. I met Ann at a party in the company of John Clyde on 20 February 20xx–1.

  8. I have not seen Robert or Ann go out together socially or otherwise since 8 January 20xx–1.
 
 

Legal Aid New South Wales also provides an example affidavit of a witness.

 
 
Example 3: Separation Under the One Roof - Witness

  1. I am the best friend/cousin/doctor/co-worker [describe your relationship] of the Applicant [name you call the Applicant] in this matter. I have known [Applicant] for [how long?].

  2. I was born on [full date of birth] in [location] and I am [XX] years of age. I came to Australia on or around [year] and I am now an Australian citizen [or state your migration status].

[Describe how you met the [Respondent] and if you attended the wedding, and how often you spent time with the couple after they were married. For example:]

  1. I often visited my friend [Applicant] at home. I was their wedding photographer. Our children are the same ages and attended the same schools so we met almost every day.

  2. When I visited their home, I noticed that both [Applicant and Respondent] would cook together. I noticed they were sharing a bedroom when we travelled together.

[Describe how you heard about the separation. For example:]

  1. Around [date], [Applicant] came over to my house looking upset and said words to the effect of “[Respondent] and I have decided to separate since last month. I moved out to the spare room and I need to find a new place to stay.”

[Describe what you have personally seen, heard or been told about the separation. For example:]

  1. I have not directly spoken to [Respondent] about what happened since they separated. I remember I said words to the effect of “I was sorry to hear what happened, I’m here if you want to talk”.

  2. Since their separation, I have visited [Applicant] and [Respondent] has not been around when I have visited their home.

  3. When I visited the home, I observed [Respondent’s] clothes and computer in the spare room, with blankets and a mattress on the floor. [Applicant] said words to the effect of “I cook and clean for myself now”.

  4. A few months ago. I attended a friend’s wedding and I saw that [Respondent] attended and the host told me words to the effect of “I couldn’t invite [Applicant] because everyone knows they just separated.”

  5. I understand from my observations and conversations with [Applicant/Respondent] that they live separately and apart in the same home.
 
 

References.1

    • Commonwealth Courts Portal, Part D. Marriage and separation (Webpage).

    • Family Court of Western Australia, Case Management Guidelines (7 May 2012) [51].

    • Family Law Act 1975 (Cth), s 49(1)+(2).

    • Federal Circuit Court of Australia, Separated but living under one roof (Webpage, 1 March 2013).

    • In the Marriage of Pavey (1976) 25 FLR 450, 457-8 (Evatt CJ, Demack J and Watson J).

    • Legal Aid New South Wales, Divorce factsheet 3 – Separation under the same roof (Webpage, June 2019).

    • Legal Services Commission of South Australia, Separation under one roof (Webpage, 29 May 2014).

    • Maree Livermore, The Family Law Handbook (Thomson Reuters, 5th Edition, 2019) 52-3.

    • The College of Law, Victoria Practice Papers 2019-2020 (LexisNexis Butterworths, 2019) vol 1, [F101.15], [F101.420], [F101.425].

    • Victoria Legal Aid, Divorce (Webpage, 26 July 2016).

Step 29. Application for Divorce: Part D: Question 17

“Since the date of separation, have you and your spouse lived together as husband and wife?”

Before the court will grant you a divorce application, you must be separated for a minimum of 12 months. You can live together after separation for one period for a maximum of 3 months, however, this gap in separation will not counted towards separation time.

For example, if James and Elizabeth separated in January but started living together in May, then separated again in August, James and Elizabeth will not be able to divorce until March the following year. See the diagram below as an illustration.

If you get back together for over 3 months after separation, the separation time refreshes and you will need to separate for another 12 months. For example, if James and Elizabeth separate in January, and get back together in November, but stay together for 4 months, James and Elizabeth will need to separate for another 12 months, even though they just separated for 11 months the previous year.

Minor interruptions to the cohabitation period (getting back together after separation), will be treated as 1 continuous cohabitation period. For example, if James and Elizabeth separated for 3 months, then cohabited for 2 months, but during the cohabitation period James and Elizabeth separated again for 2 days, the cohabitation period will be 2 months, not 1 month and 28 days.

In the divorce application, you must input the periods in which you were separated and cohabited. The Court will use this information to do the calculations to see whether you have been separated for 12 months and whether your cohabitation period/s exceeds 3 months. See example below.

 

You should advise the court at your court hearing whether you have cohabited with your spouse in the time between filing your application for divorce and your court hearing. See image below as an example.

 
 

References.1

    • Commonwealth Courts Portal, Part D. Marriage and separation (Webpage).

    • Family Court of Western Australia, Case Management Guidelines (7 May 2012) [50.1].

    • Family Law Act 1975 (Cth), s 48(2), s 48(3), s 50(1), s 50(2).

Step 30. Application for Divorce: Part D: Question 18

“Do you think it is likely that you and your spouse will live together again as husband and wife?”

Your marriage must be have ended permanently for the court to grant an application for divorce. As such, if there is a chance that you and your spouse will get back together, you cannot get a divorce. If you tick the box ‘Yes’, it is likely that your application will be dismissed.

References.1

Step 31. Application for Divorce: Part D: Question 19

“At the date of filing this application, is it less than two years since you married?”


If at the time of making your application for divorce, you have been married for less than 2 years, you must either:

  1. Get counselling from a family counsellor; or

  2. Request permission from the court.


If you do not do either of the above, your application for divorce will be rejected.

“Have you attended counselling with a family counsellor?”


If at the time of making your application for divorce, you have been married for less than 2 years, you must either:

  1. Get counselling from a family counsellor; or

  2. Request permission from the court.


If you do not do either of the above, your application for divorce will be rejected.


1. Counselling From a Family Counsellor

 
 

In your counselling session with your counselor, you must consider the possibility of reconciliation with your spouse. ‘Consider’ just means that the the possibility of reconciliation has been brought to your attention and you have made a decision about it one way or another. Your family counselor must complete the Counselling Certificate. You should take the Counselling Certificate with you to your appointment. You must upload the completed Counselling Certificate to the Commonwealth Courts Portal.


Your Counselling Certificate should match the image below.

 
 
 

Your discussions with your family counselor is generally confidential, that is, what you say cannot be used in court. However, the brochure Marriage, Families & Separation by the Family Court of Australia and the Federal Circuit Court of Australia provide advice some exceptions. Firstly, “where there is a legal requirement to report a suspicion or risk of child abuse and violence or threats of violence” and secondly, “the Court may order that a family counsellor or family dispute resolution practitioner give evidence of an admission or disclosure of abuse made during a session.”

“If you did not attend counselling, are you seeking permission of the Court to apply for divorce less than two years from the date of marriage?”

If at the time of making your application for divorce, you have been married for less than 2 years, you must either:

  1. Get counselling from a family counsellor; or

  2. Request permission from the court.

If you do not do either of the above, your application for divorce will be rejected.

2. Request Permission From the Court

 
 

To request permission from the Court:

  1. You must have not received counselling from a family counselor in relation to the possibility of reconciliation; and

  2. You must have special circumstances for not attending counselling. Special circumstances may include for example, your spouse cannot be located, your spouse will not attend counselling, and/or your spouse was physically violent towards you.

  3. You must file an affidavit. Download the affidavit document from the Federal Circuit Court of Australia and edit it in Microsoft Word or in another similar program. Read and follow the instructions on the first page called ‘Instructions for completion’. Your document should match the images below.

 
 

Consider including the following in your affidavit:

  • State your name, your date of birth and that you are the applicant to this divorce application.

  • State the name of your spouse, their date of birth and that they are the respondent to your divorce application.

  • State the dates when you married and separated.

  • State that you have been married for less than 2 years.

  • State the special circumstances for why have not attended family counselling:

    • For example, your spouse was violent towards you. Describe the circumstances and the event/s. If you reported this to the police, state this. State that you feel unsafe to be in the same room with your spouse.

    • For example, your spouse cannot be located. Describe the details, for example, your spouse moved overseas after separation and did not return. State the steps you have taken to locate your spouse.

    • For example, your spouse will not attend counselling. Describe the steps you have taken to invite them to counselling.

 

References.1

    • Commonwealth Courts Portal, Part D. Marriage and separation (Webpage).

    • Family Court of Australia, Counselling certificate for applicants married less than 2 years (Webpage, 10 May 2018).

    • Family Court of Australia, Have you been married less than two years? (Webpage, 1 March 2013).

    • Family Court of Australia and Federal Circuit Court of Australia, Marriage, Families & Separation (Prescribed Brochure, 28 June 2019).

    • Family Law Act 1975 (Cth), s 44(1B).

    • LexisNexis, Australian Encyclopaedia of Forms & Precedents (online at 12 October 2019) 270.70 Affidavit Deposing to of Less Than 2 and That Marriage Years Counselling Should Not Be Required, ‘Application for Divorce’.

    • In the Marriage of NUELL (1976) 1 Fam LR 11,239.

    • The College of Law, Victoria Practice Papers 2019-2020 (LexisNexis Butterworths, 2019) vol 1, [F101.25], [F101.140].

Step 32. Application for Divorce: Part E: Question 20

 

“Pending Cases: Are there any current or pending cases in this or any other court about family law, child support, family violence or child welfare involving any of the parties and /or children listed in this application?”

See example below.

 
 

References.1

Step 33. Application for Divorce: Part E: Question 21

 

“Existing orders: Are there any existing orders, binding agreements, parenting plans or undertakings to a court about family law, child support, family violence or child welfare involving any of the parties and /or children listed in this application?”

If this question is not applicable to you, choose ‘No’. See example below.

 
 

If this question is applicable to you, complete the form. See example below.

 
 

Commonwealth Courts Portal only allows 1000 characters for the details section, so, if your orders are lengthy, you may need to tick the box ‘I prefer to upload the order as a separate PDF file at the Application page.’ See example below.

 
 

References.1

Step 34. Application for Divorce: Part F: Question 22

 

“Are there any children currently under 18 who:
a. are children of you and your spouse?
b. were treated as members of your family when you and your spouse separated?”

A child includes:

  • Children born before your marriage;

  • Children before after your separation;

  • Children adopted by you and your spouse;

  • Children treated as if they were members of your family, for example, step-children or foster children.

Question 22 has 4 different combinations.

  • 22.a. “Yes” and 22.b. “Yes” = You have children under the age of 18 who are children of you and your spouse and these children were treated as members of your family when you and your spouse separated.

  • 22.a. “Yes” and 22.b. “No” = You have children under the age of 18 who are children of you and your spouse and these children were not treated as members of your family when you and your spouse separated.

  • 22.a. “No” and 22.b. “Yes” = You do not have children under the age of 18 who are children of you and your spouse and these children were treated as members of your family when you and your spouse separated.

  • 22.a. “No” and 22.b. “No” = You do not have children under the age of 18 who are children of you and your spouse and these children were not treated as members of your family when you and your spouse separated.

Each combination will be addressed below.

22.a. “Yes” and 22.b. “Yes”


If you have children with your spouse, you should choose the option ‘Yes’ for 22.a. If these children were treated as members of the family, that is, you have a relationship with these children, you should choose option “Yes” for 22.b. See example below.

 


22.a. “Yes” and 22.b. “No”


If you have children with your spouse, you should choose the option ‘Yes’ for 22.a. If these children were not treated as members of the family, that is, you do not have a relationship with these children, you should choose option “No” for 22.b. See example below.


 

22.a. “No” and 22.b. “Yes”


If you do not have children with your spouse, you should choose the option ‘No’ for 22.a. However, if there children who were a part of the family, for example, stepchildren, and you have a continuing relationship with them, you should choose option “Yes” for 22.b. See example below.

 

22.a. “No” and 22.b. “No”

If you do not have children with your spouse, you should choose the option ‘No’ for 22.a. If there children who were a part of the family, for example, stepchildren, but you do not have a continuing relationship with them, you should choose option “No” for 22.b. See example below.

 

References.1

Step 35. Application for Divorce: Part F: Question 23

“Child’s Details”

“Given names” means your child’s first name and middle names. “Family name” means your child’s last name. If you do not know your child’s date of birth, for whatever reason, click the box “Unknown”.

See example below.

 

References.1

Step 36. Application for Divorce: Part F: Question 24


“Name of father”

Write “Unknown” if you do not know the name of your child’s birth father or adoptive father and you are not your child’s birth father or adoptive father. The Commonwealth Courts Portal advises that you may need to provide the Court with more information if you do write “unknown”.

See example below.


 

References.1

Step 37. Application for Divorce: Part F: Question 25


“Name of mother”


Write “Unknown” if you do not know the name of your child’s birth mother or adoptive mother and you are not your child’s birth mother or adoptive mother. The Commonwealth Courts Portal advises that you may need to provide the Court with more information if you do write “unknown”.

See example below.


 

References.1

Step 38. Application for Divorce: Part F: Question 26

“Who does the child live with?”

This question is asking who the child lives with most of the time. If the child lives with one parent, or both parents, or a relative, etc., you need to choose the appropriate option.

If you choose the option “Other” or “Other Party”, you must provide the name/s of the person/s. This person may for example be an Uncle or a close family friend.

See example below.

 

References.1

Step 39. Application for Divorce: Part E: Question 27



“Child’s address”


See example below.




If the child spends substantial amounts of time at multiple addresses, provide the details for both addresses by clicking the “Add Address” button. See image below.



If you have safety concerns, such as fear of family violence if your address is released to your spouse, you may choose hide your address by clicking “do not disclose” box. See image below.



If you checked the “do not disclose” box, the Commonwealth Courts Portal advises that you may be required to inform the Court of more details regarding safety concerns. If you have family violence orders that are current or pending, you need to tell the Court by providing the details back at Part E, Question 20. The Commonwealth Courts Portal also advises that if you have any concerns about your safety while attending Court, “please call 1300 352 000 or speak to staff at a family law registry before your court appointment or hearing. Options for your safety at the Court will be discussed and arrangements put in place.”

 

References.1

Step 40. Application for Divorce: Part F: Question 28

“Current details for the child.”

An Application for Divorce will not be granted unless (1) arrangements for all children under the age of 18 have been made or (2) if you cannot provide proper arrangements of your children, you must instead provide the Court special reasons by why the divorce application should be granted regardless.

Proper Arrangements of Children

You should include the following information:

  • “Time and communication with the child”

    • This question is referring to the parent which the child does not live with. Include the amount and frequency the child spends with that parent.

    • This time may include face-to-face, telephone, email, or any other form of communication.

  • “Financial Support”

    • Who pays for the costs of raising your child.

    • Details about any child support. This may include child support is being paid, or agreed to be paid, or assessed to be paid, or ordered to be paid.

  • “Health”

    • Details about your child’s health.

    • Any diagnosis.

    • Any treatment.

    • Any ongoing medical needs.

  • “Education”

    • Which school your child goes to.

    • What year your child is in at school.

    • How your child is progressing at school.

The College of Law provides an example answer to these questions. The Law Project has adapted these answers. See image below.

You should make all attempts to find out this information, for example, by contacting your spouse. If you cannot find out the relevant information, the Commonwealth Courts Portal advises that you should be prepared to tell the Court what attempts you made to find out this information.

Special Reasons

If you cannot provide proper arrangements for your children, you must instead provide the Court special reasons by why the divorce application should be granted regardless.

For example, in the case Yee & Woo [2018] FCCA 666, the special circumstances were: the children and wife lived in China and it is unclear whether they will ever return; the children were in the care of the grandmother and not either of the parents; the lack of enforceable child support assessment; and that there are no family law proceedings.

If you cannot provide special reasons, the Court will not grant your Application for Divorce and wait until a report has been prepared by a family consultant detailing the proper arrangements.

 

References.1

    • Commonwealth Courts Portal, Part F. Children (Webpage).

    • Family Law Act 1975 (Cth), s 55A.

    • The College of Law, Victoria Practice Papers 2019-2020 (LexisNexis Butterworths, 2019) vol 1, [F101.400].

    • Yee & Woo [2018] FCCA 666.

Step 41. Application for Divorce: Part F: Question 29


“Do you plan to make any changes to these current arrangements?”


This may include for example, changes in schooling, financial support, or living arrangements. See example below.


 

References.1

Step 42. Application for Divorce: Serving Documents

Joint Application

If you and your spouse completed the joint application, your spouse does not need to be served with any documents.

Sole application

If you completed the Application for Divorce as a sole applicant, the following documents must be served on your spouse:

  1. The completed and signed Application for Divorce, and

  2. The ‘Marriage, Families and Separation’ brochure, and

  3. All other documents which you filed (except for your Marriage Certificate).

How to Serve Documents?

There are a few ways to serve documents on your spouse (note, you personally by law are not allowed to hand documents to your spouse):

  1. Posting the documents by mail to your spouse.

  2. Email or other forms of electronic communication.

  3. A person over the age of 18 can personally hand the documents to your spouse. You yourself are not allowed to hand documents to your spouse.

If your spouse has a disability, the documents must instead be served on your spouse’s (1) case guardian, or (2) guardian appointed by law, or (3) if there is no guardian, an adult who is in the care of your spouse, or (4) if there is no guardian and your spouse is in a hospital, nursing home, or other care facility, the head of that hospital, nursing home, or other care facility, must be served.

If your spouse is in prison, the person in charge of the prison is the person who must be served the documents.

Cannot Find Your Spouse?

Deadlines for Serving Documents

If your spouse is located overseas, the documents must be served at least 42 days before your Court date.

If your spouse is located in Australia, the documents must be served at least 28 days before your Court date.

 

The rest of the section in still under construction. The Law Project apologises for the inconvenience.