Preview – Chapter 2 – Can I get a divorce
Today’s blog is the 2nd instalment of an extract from our e-Book, Your Ultimate Guide to Divorce. Today’s article focuses on some of the basic issues to ascertain whether you are eligible to apply for a divorce.
Chapter 2 – The Basic Essentials
There are a number of basics which need to be met if you are seeking to apply for a divorce. We give a summary of each below.
I must be married – as strange as it may seem, a divorce is only required at the ending of a relationship where a marriage has taken place. This marriage could be in Australia or overseas. No divorce is required in the case of a de facto relationship although as a curiosity, rules about the division of property and the arrangements for the care of children can be formalised and dealt with through the Family Court.
To be eligible for a divorce, as we noted above, your marriage can have taken place in Australia or anywhere else in the world. A copy of your marriage certificate will be required to be produced when an Application is filed for your divorce and indeed, if it is in foreign language there will need to be a certificate of translation lodged with the documents (in other words converting the text into English).
Citizenship and living arrangements
If you are an Australian citizen either by naturalisation or birth you can apply for a divorce in Australia. Even if you are not a citizen, if you live in Australia and it is your intention to continue to reside here in Australia, that is a sufficient link to make your application for divorce in Australia, rather than the country of your marriage.
Length of separation
To get divorced you need to be separated from your spouse for at least 12 months. Sometimes this separation can be under the one roof and there can be periods of reconciliation and these are dealt with under the next chapter, but the general rule is that the total period of your separation must be for at least 12 months.
As an interesting sub-rule, if you separate within the first year of marriage and then make an application within 2 years from your date of marriage, you will need to undertake counselling and obtain a counselling certificate prior to filing for your divorce. The original logic for this was that if a break-up has occurred so early in the marriage the parties should take reasonable steps to ascertain whether it is on a permanent basis, (apparently we are unable to work this out for ourselves.)
Is there a cost for a divorce
There can be several costs which are occurred when you file for a divorce, these principally include;
(a) the Court ordered filing fee – the Court charges a fee when you file your application for your divorce. This is currently $910.00 and if you are a concession card holder then the fee is reduced to $305.00 if you hold a health or other concession card.
(b) the cost of obtaining a marriage certificate – if you do not hold your marriage certificate or your spouse holds it but refuses to give it to you, then you can order a copy from The Registry of Births, Deaths and Marriages. The average cost of getting this paperwork is about $60.00.
(c) the cost of serving the divorce application on your spouse – the divorce application, where possible, must be brought to the attention of your spouse. While details regarding services are dealt with in further chapters, if it is case that the application must be given to your spouse personally, then you will usually incur the cost of a process server to assist in that process. The usual cost of arranging service in this nature is between $160 to $250. It should be noted that on the majority of cases personal service by a process server is not required, as your spouse will acknowledge service in some other way.
(d) legal costs of engaging a legal advisor – if you engage a solicitor to assist in obtaining your divorce, then by our research the cost can be between $880 to $2200. However, using our online platform the team at Your Divorce will charge $550 (including GST) to undertake all the necessary steps to assist you.
Once you have established that you are in fact, separated and have been separated for the correct amount of time, have your marriage certificate or a translation of it and there are no other jurisdictional issues, then you can make your application.
What is required in an application is contained in the next Chapter Making your application.