When it comes to filing for divorce in Australia, there are two main ways to start the process: a sole divorce application or a joint divorce application.
A sole divorce application is filed by one spouse, often when the other party either doesn't agree to the divorce or is unavailable to participate. On the other hand, a joint divorce application is made when both parties agree to end the marriage and are willing to work together to file for divorce.
Knowing the difference between these two types of divorce applications can help you to decide which application type may be right for you and your circumstances, and that's what our top family lawyers Sydney are here to help with.
In this article, we'll go into more detail about these differences and essentially walk you through everything you need to know about sole and joint divorce applications.
What is a sole divorce application?
A sole divorce application is when one party to the marriage decides to apply for a divorce without the involvement and/or agreement of the other spouse.
This type of application is common in situations where the other party is either unwilling to cooperate or cannot be reached. In Australia, even if only one spouse wants to end the marriage, they can proceed with a sole application for divorce.
In a sole divorce, the person filing the application is responsible for serving the divorce papers to the other spouse. This means they must ensure that the divorce documents reach their spouse, whether through a process server or other means like substituted service if the spouse cannot be located.
It's important to note that filing a sole divorce application doesn't affect the outcome of the divorce proceedings. The Family Law Act 1975 ensures that if the marriage has broken down irretrievably, and the couple has been separated for at least 12 months, a divorce order can still be granted, even if the other spouse does not agree.
How to file a sole divorce application
Filing a sole divorce application in Australia involves several key steps. Here's how the process works:
- Complete the application: The first step is to fill out the sole application for divorce form, which can be completed online through the Commonwealth Courts Portal. You will need to provide details about your marriage, separation, and any children involved, as well as upload important documents like your marriage certificate.
- Submit the application: Once the form is complete, you'll need to file it through the Commonwealth Courts Portal. There is a filing fee that applies, but you may be eligible for a reduced fee if you can demonstrate financial hardship. Find out more about the cost of divorce in Australia.
- Serve the divorce papers: After the divorce application is filed, you must ensure the other party (your spouse) receives the divorce documents. This is done by serving the documents—a process that ensures your spouse is officially informed of the divorce. If you cannot locate your spouse, you may need to request substituted service from the court.
- Wait for the court date: Once the divorce papers have been served, the court will set a hearing date. In most cases, you will not need to attend the court hearing unless there are specific issues to address, such as matters involving children.
As you can see, the process of applying for divorce, even solely, is quite straightforward.
What happens after you file a sole divorce application?
Once you've filed a sole divorce application and served the divorce papers to your spouse, there are a few important steps that follow:
- Response from the other party: After being served, your spouse has 28 days (or 42 days if they are overseas) to respond. They can choose to agree to the divorce or file an objection. If your spouse refuses to accept the divorce, they must provide valid reasons to the court. However, under the Family Law Act, disagreements from the other spouse rarely prevent a divorce order from being granted if the marriage has broken down irretrievably.
- Court hearing: If no objections are raised, the court hearing will go ahead. As we touched on earlier, in most cases, the applicant doesn't need to attend the divorce hearing, but you must attend if you have children under 18. The family court will review your application to ensure all legal requirements are met, such as being separated for 12 months and having made reasonable attempts to serve the documents.
- Divorce order: If everything is in order, the court grants the divorce order. This will become final one month and one day after the order is made. After this period, you will officially be divorced, and you can download a copy of the divorce order through the Commonwealth Courts Portal. It's important to note that getting a divorce is a separate process to dividing your assets and sorting out parenting matters – these are things that must be sorted out due to relationship ending.
- What if your spouse can't be served? If you have trouble serving the divorce documents to your spouse (e.g., you don't know their last known address or they are overseas), you can apply for substituted service or dispensation of service. This allows the court to approve alternative methods of notifying your spouse about the divorce.
What is a joint divorce application?
A joint divorce application is when both spouses agree to apply for divorce together. This type of application is often more straightforward and cooperative since both parties are willing to end the marriage and work through the legal process as joint applicants.
In a joint divorce application, both spouses sign and submit the divorce application together. Since there is mutual agreement, there's no need to serve divorce papers, which simplifies the process and helps avoid unnecessary delays or conflicts.
A joint application can be used when both parties agree that the marriage has broken down irretrievably and have been separated for at least 12 months. This option is typically a little smoother than a sole application because it removes the need for any formal serving of documents or court involvement in ensuring the other party has been notified.
How to file a joint divorce application
Filing a joint divorce application is generally more straightforward than a sole divorce application, as both parties are involved and cooperative throughout the process. Here's how it works:
- Complete the application: Both spouses must complete the joint divorce application together. This can be done online via the Commonwealth Courts Portal. You will need to provide details about your marriage, separation, and any children involved. Make sure to have important documents like your marriage certificate ready for submission.
- Submit the application: Once the application is complete, you'll need to file it through the Commonwealth Courts Portal. There is a filing fee, but since both parties are involved, this could be shared. In cases of financial hardship, you may be able to apply for a reduced fee.
- No need to serve documents: Unlike a sole application, in a joint divorce application, there is no need to serve the divorce documents to the other spouse because both parties are already involved in the process.
- Wait for the court date: Once the application is filed, the court will assign a court date or hearing date. Like in a sole application, neither party is required to attend the court hearing unless there are children under 18 involved. If so, the court may require both parties to be present to ensure the arrangements for the children are appropriate.
Filing a joint divorce application allows both parties to work together to end the marriage in a smoother and more cooperative way, without the need for serving papers or handling disputes.
What happens after you file a joint divorce application?
Once you've filed a joint divorce application, the process tends to move along pretty easily since both parties agree. Here's what happens next:
- Court hearing: After the joint application is filed, the court will schedule a hearing date.
- Divorce order: If the court is satisfied that all the legal requirements have been met, including the 12-month separation period, it will issue a divorce order.
- The divorce order is granted on the day of the hearing but becomes final one month and one day later. After this period, the divorce is officially recognised, and you will be able to download a copy of the divorce order from the Commonwealth Courts Portal.
Conclusion
Deciding between a sole divorce application and a joint divorce application depends on your circumstances. A joint divorce application definitely has some more pros over a sole application, as you do not need to serve documents, however, the option to have a sole application is extremely beneficial and ensures that people can move forward with their lives, even when one spouse is not cooperating.
The option that is right for you will be dependent on your circumstances and relationship with your former spouse. But you can learn more about the process of filing for divorce in more detail here in our guide to applying for divorce in Australia.
Regardless of which option suits your situation, it's important to seek legal advice to ensure your rights are protected and the process is handled properly. At Unified Lawyers, we have the best divorce lawyers Sydney to help you navigate the divorce process, including working through property settlements and parenting matters, whether you're filing a sole or joint divorce application.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.