What is the difference between Joint or Individual Application for Divorce in Australia?
The Family Law Act allows the ending of a marriage by a divorce application to be filed in one of two different ways.
A joint application for divorce is where both parties of the marriage must sign the original application.
The alternative is an individual application for divorce signed by only one of the parties to the marriage.
There are pros and cons of each approach which we discuss below.
Joint Application For Divorce
By its very name, a joint application for divorce means exactly that – a divorce application filed and signed by both parties to the marriage.
An advantage of a joint divorce application is that there is no need to arrange for service (delivery) of the application by one party on the other.
This saves time and paperwork, and the final hearing is simplified, being completed without the need for the applicant or their solicitor to attend a court hearing.
This means that the divorce application after filing is reviewed internally by the Court and only if there are technical issues will the Court require the parties or their solicitor to attend a hearing.
Examples of technical issues include where the length of separation has not been 12 months or it is unclear what are the care arrangements for children under 18 who were in the care of the parties at separation.
A joint application for divorce means that both parties must be able to cooperate in arranging completion of the divorce application and signing the necessary E-file affidavit (a sworn statement) prior to filing.
There are occasions because of communication issues/conflict or the lack of knowledge of the whereabouts of one party to the marriage where this simply is not possible.
A potential disadvantage of a joint application is how the court filing fee payable to the Commonwealth is assessed.
The Court charges a filing fee of $1060 which is reduced to $350 if a healthcare or concession card is held by the applicants.
In a joint application BOTH parties must hold a healthcare or concession card for the reduced fee to apply.
If only one party holds a concession card the reduced fee will not be allowed and it will cost an extra $710 to proceed with the application.
We would usually recommend that the concession card holder file an individual application and then give the application by way of service to the other party to save that money.
Individual Application For Divorce
The most common application for a divorce is an individual application filed by one party to the marriage.
An individual application occurs approximately in three out of four divorce applications.
Apart from a reduced filing fee the reason for this is that there can be a lack of communication or ability for the parties to cooperate or coordinate a joint application.
Sometimes, one party simply doesn’t wish to get divorced or be involved in the process.
At other times high conflict or the whereabouts of one party are issues leading to an individual application being filed.
Whilst there is the advantage of potentially a reduced court filing fee if the applicant holds a concession card, a disadvantage of an individual application is that it is necessary to serve the application on the other party.
This is initially usually achieved either by post or by personal service.
We have a great article based on the topic of CAN A SPOUSE REFUSE TO SIGN DIVORCE PAPERWORK 2023 for more information about service of the divorce application.
It is important in relation to the issue of service when undertaking a divorce hearing that if personal service or service by post has not occurred, that you or your solicitor advise the court of the best approach to be used regarding service of the application and provide the most detailed information you can about the location of your former spouse including contacts such as social media, email, possible phone numbers and the like.
This will assist the Court decide what is the best alternate approach to service.
In an individual divorce application where there are children under 18 years of age who were in the care of the parties at the time of separation, then it will be necessary to attend the divorce hearing for the Court to confirm that the children’s care, welfare and development is being maintained and managed.
There is information to be completed in the divorce application which will assist the Court in reaching this view.
If there are no children under 18 years of age, then like a joint application the Court will usually assess the application internally and advise of the outcome of the internal review shortly after the hearing date
Some further thoughts
It is important that once you have formed the view that you wish to legally end your marriage and file a divorce application that you give consideration as to the best and optimal approach between a joint or individual application.
For further reading on this topic read our “Acknowledgement Of Service” blog
If the parties are cooperative and it will not add to the cost, then a joint application is the simplest way to proceed and would be recommended.
However, as noted above, this is not always the case, and the majority of divorce applications remain individual ones.
The Team at Your Divorce can advise as to your best option and you may wish to complete an application on their website using the START NOW button or alternatively send them an email at help@your-divorce.com.au to clarify any final questions prior to commencing your divorce journey.
We hope we have explained to you the difference in a Joint and Individual Application for Divorce is in Australia.