When should I make an Application for Divorce?

An Application for Divorce is filed and heard and determined in the Federal Circuit and Family Court of Australia. The Divorce Order itself, purely relates to ending the legal marriage. Filing for Divorce is a separate process to finalising a property settlement or making formal arrangements for parenting matters. You can read more about the difference between a separation and Divorce here.

There is technically no limitation period when it comes to filing an Application for Divorce. Some people remain separated for many years, whilst still remaining legally married. Whilst this may suit some people, there are a few key points to consider;

1. Whilst you are still legally married, you cannot re-marry;
2. You should still need to finalise a property settlement to divide your property;
3. If you have children with your ex-spouse, you may still need to make parenting arrangements.
4. If you simply remain separated and do not take steps to finalise your property division or obtain a Divorce Order, you will remain financially interconnected with your ex-spouse. This means that your property division may not be finalised for many years after separation and, until your property is finally divided, the period from separation to final division of property will continue to be relevant to how the property is divided. In addition, all your property and financial interests remain susceptible to the final property division, even where purchased many years after separation.
5. If you have made a Will in which you appoint your spouse as Executor and/or name them as a Beneficiary, these clauses will continue to have effect, even if you have separated many years earlier. A Divorce Order will cause these clauses of your will to become ineffective.

Joint Application for Divorce versus Sole Application for Divorce

A joint Application for Divorce is submitted to the Court on behalf of both parties. It is common that one party (or their legal representative) will draft the Application and provide a copy to the other party to sign. If the parties are amicable, some parties may choose to share the cost of the Court filing fee.

A joint Application for Divorce removes the requirement to serve the Application for Divorce on the other party. This can make the Application process much quicker and cheaper. Whilst both parties will need to sign the Application, that Application does not need to be personally served via a process server and there is no need to prove service by way of an Affidavit of Service.

A sole Application for Divorce is completed and filed by one party. That party will be solely responsible for the Court filing fee. Once the Application has been filed with the Court, the filing party must serve the Application for Divorce on the other party. This is commonly achieved by way of personal service by a process server. The filing party will need to instruct the process server by providing them with the necessary documents and instructions for service. Depending on the location of the person being served, this may be a costly exercise. Alternatively, if the filing party is certain that the other party will receive and acknowledge the Application for Divorce via post, they may attend service this way. The receiving party must return a signed Acknowledgement of Service to the filing party and file this Acknowledgment along with an Affidavit of Service (by post) with the Court.

Divorce Hearings are conducted remotely via telephone. The parties may be excused from attending in some circumstances. If a Divorce Order is made at Hearing, the Order will take effect one month and one day later.

Limitation Period for Property Settlements

The limitation period to finalise your property division commences as at the date of your Divorce Order becoming final (that is, one month and one day after the Divorce Order is made). The limitation period is twelve (12) months. If you have been unsuccessful in negotiating a property division and the twelve (12) month limitation period is nearing, you may need to consider commencing proceedings in the Federal Circuit and Family Court of Australia to protect your property interests before the limitation period expires.

You will need to seek permission from the Court if you intend on commencing Court proceedings in relation to property matters once the limitation period has expired.

While there is often no need to obtain a Divorce Order with any urgency, we recommend that you finalise your property division prior to making an Application for Divorce to ensure that the limitation period for property division does not expire.  After your property is divided, we recommend that you obtain a Divorce Order to ensure that you no longer are legally married to your former spouse.