It sounds obvious but to divorce someone you must be legally married to that person first. The evidence for that is usually your marriage certificate.
MARRIAGE HAS BROKEN DOWN IRRETRIEVABLY
You must show to the Familyc Court that your marriage has broken down irretrievably. This is proved by establishing that you and your spouse have been separated for a period of 12 months or more prior to filing the Application for Divorce.
If you have children with your spouse under the age of 18 you must satisfy the court that certain arrangements are in place for the children. The court will consider:
· the living arrangements for the children;
· the time the children spend with each parent;
· whether the children are being financially supported by you and your spouse;
· the health and education of the children.
If you have been married for less than 2 years the court cannot hear your Application for Divorce unless you and your spouse have been to a family counsellor to consider the prospects of reconciliation or the court dispenses with the requirement for counselling.
To give you an overview of the numerous steps involved I have included a brief summary next. My project plan links to the Family Court of Western Australia documents.
The following is just an example and some steps might not apply in your circumstances. Other steps not included in the project plan might be applicable in your circumstances.
1. First interview with the client in person or online.
2. Give to the client the brochure Marriage, Families and Separation.
3. Discuss costs and draft a retainer agreement.
4. Client to sign a retainer agreement and forward deposit on account of costs and disbursements.
5. Lawyer gives written advice to the client about the divorce.
6. Objection to jurisdiction – due to various reason the court might not have jurisdiction to hear the divorce application. Lawyer to advise you on that.
7. Complete Form 3 Application for Divorce. Include date of separation as it is important for the following reasons:
· when child support becomes payable;
· when new Centrelink benefits become payable;
· how the court will calculate the property settlement.
8. Send a copy of the completed Application for Divorce to client for checking.
9. Send a letter to other party seeking a joint application and sharing of application fee to save client’s money.
11. If the Marriage Certificate is not in English (Overseas Marriage Ceremony), obtain a translation and an affidavit of translation. If client does not have a copy:
Ask the client to order a copy from the Registry of Births, Deaths and Marriages WA or click here if the marriage took place interstate.
Draft an affidavit if a copy cannot be obtained.
12. A Certificate from a Family Counsellor is required if the marriage lasted less than two years.
13. Client to swear the Application for Divorce form.
14. Lawyer to sign declaration.
15. Lawyer to obtain instructions about service.
FILE APPLICATION FOR DIVORCE
16. Take the following to the Family Court Registry for filing:
· original and two copies of the application – see translation clause if client does not speak English;
· copy of Marriage Certificate;
· affidavit in Lieu of Marriage Certificate;
· affidavit of translation of Marriage Certificate;
· copies of any existing orders;
· copies of Citizenship paper or Australian Passport if client born overseas;
· for non-citizens and affidavit proving domicile in Australia;
· if the parties have been living under the same roof affidavit of the applicant and one corroborating witness.
17. Inform the client of the Court hearing date.
SERVICE IF NOT A JOINT APPLICATION
18. Contact respondent and confirm willingness to accept service. If Respondent has engaged a lawyer confirm that instructions to accept service have been given.
19. Immediately serve sealed Application for Divorceand Marriage, Families and Separation.
20. If the first attempt to serve failed serve again using an alternative service method.
Alternative methods of service
21. Use a process server.
22. Obtain and file an acknowledgement of service. File at the registry with a covering letter.
23. Obtain and file an affidavit of service.
24. Substituted service required.
25. Apply for dispensation of service under Reg 7.18 Family Law Rules 2004.
26. Service overseas.
Note: Inform the respondent at the time that the application is served if shortening of time sought.
IF DEFENDED APPLICATION
27. File and serve a response (objecting to jurisdiction) within 28 days of service.
28. Directions for further conduct of the matter.
29. Defended hearing.
DAY BEFORE HEARING
30. Remind the client of the hearing day.
31. Inform the client of Court process.
32. Ask the client if any change of circumstances has occurred between the date of filing and the hearing date.
In the absence of the parties
33. Hearing in the absence of the parties.
In the presence of at least one of the parties
34. Prove the marriage – tender marriage certificate.
35. Establish jurisdiction -application should achieve this.
36. Prove the ground of divorce -application should achieve that.
37. Prove service – affidavit of service, acknowledgement of service, affidavit of proof of signature.
38. Show that proper arrangements have been made for the welfare of any children (s.55A FLA).
39. Seek leave to rely on client’s affidavit evidence if any.
40. Advise the Court orally if any change in circumstances.
41. Divorce order pronounced.
ADVISE TO CLIENT AFTER THE HEARING
42. The outcome of the hearing and that one month for divorce order to take effect (s.55 FLA).
43. Status of his/her last Will –Wills Act 1970 s14A.
44. Twelve month limit for property and spousal maintenance applications to be filed from the date the divorce order took effect.
45. Change of beneficiaries of superannuation funds and insurance policies.
46. Mail divorce order to client with written advice about 41 to 44 above.
There are many other considerations when applying for divorce so please call us on 0421 145 637 for personalised legal advice.