Divorce
Lawyers & Barristers

The Court Filing fees does change. At at April 2016, the current court filing fee for a Divorce Application is $845. Please see the Family Court of WA website for court filing fees.

You may also need to consider paying for a process server to server your spouse with your Divorce Application if you have made a sole application.

Once the Application has been filed, you will generally receive a court hearing date within 2-3 months. Should the Order be made on the day of the hearing, the Order will not come into effect until one month and one day after the divorce hearing.

If your partner wants the divorce granted, but disagrees with facts in the application, they may file an affidavit. Your partner will need to outline which facts they disagree with in the affidavit and attend the hearing.

If your partner does want the divorce granted, they must file a Response to Divorce. Your partner will need to outline the reasons why they oppose the divorce in the Response to Divorce. Your partner is required to attend the hearing. If they do not attend, the Court may decide the divorce application in their absence.

There are few situations where an application for divorce can be refused. This is only permitted when:

• There has not been a 12-month separation.
• The court does not have jurisdiction to hear the application.

If you object to the divorce or to facts stated in the application, you must complete and submit a Response to Divorce and you must appear in person at the hearing. The form must be filed within 28 days of the original application being served.

If you do not know your spouse’s address you may apply to the Court to dispense with service of the divorce application. In deciding whether an order should be made to dispense service, the court will need to consider:

• That reasonable efforts have been made to find and server your spouse
• What further steps could be taken
• Whether you could reasonably afford the likely costs of those steps
• Whether advertising or some other method is likely to bring the application to your spouse’s attention

The Court can only grant a divorce if it is satisfied that:

• proper arrangements are made for all children currently under 18, or
• there are special reasons why the divorce should be granted even though proper arrangements for all the children are not made.

This means that you need to provide information about who lives, spends time and communicates with the children and about financial support, health and education for all children who are currently under 18 listed on the Application for Divorce.

A child of the marriage includes:

• any child of you and your spouse, including children born before the marriage or after separation
• any child adopted by you and your spouse, or
• any child who was treated as a member of your family prior to your final separation; for example, a step-child or foster child.

If you were married overseas, you may still be entitled to apply for a divorce in Australia if you and your spouse:

• Regard Australia as your home and intend to live indefinitely in Australia
• Are Australian citizens by birth, descent or grant. In most situations, you are an Australian citizen if:
  1. you were born in Australia and at the time of your birth at least one parent was an Australian citizen or a permanent resident, or
  2. you were born outside Australia and at least one parent was an Australian citizen and registered your birth in Australia.
• Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce

There is no legal requirement for a formal change of name if you wish to revert back to your maiden name. To avoid difficulties with obtaining recognition of your maiden name, registration of the change is recommended. In making an application to change your name:

• You must be 18 years of age or older
• If you were born overseas, you must be a permanent resident or an Australian citizen and ordinarily residing in Western Australia for 12 months immediately preceding your application.
• You can only change your name once in any 12 month period unless there are exceptional circumstances such as personal safety issues. This does not apply if you are reverting to your immediate past name.

Unlike divorce, marriage separation does not have an effect on your will. The period of separation that occurs prior to divorce is possibly one of the most important times to ensure your will reflects your changed circumstances.

If you fail to update your will upon separation and you pass away, your spouse may inherit any property you left to them. Similarly, if your will names your spouse as your executor, they will be entitled to take up that role regardless if you wanted them to or not.

Divorce affects your will, but it does so differently in each state and territory. In some jurisdictions, divorce will automatically render your will invalid. In others, divorce will simply revoke your former spouse as your executor or any gift left them. However, this does not occur if the courts believe you intended to leave your former spouse a gift or if you re-published the will after the divorce without changing the executor appointment or gift.

Rather than leave these matters to the court to unravel, it’s better to make a new will after your divorce to ensure your intentions concerning your former spouse are clear.

If you want to apply to the Court about property or your own maintenance, you must file a separate application within 12 months of the date the divorce becomes final. Otherwise, you will need the Court’s permission to apply.

You should not plan to remarry until the divorce order is finalised.

If you intend to remarry, you must give the marriage celebrant a Notice of Intended Marriage at least one month before the wedding date, and comply with other requirements of the Marriage Act 1961.

As soon as the divorce order is granted, the marriage celebrant may accept the Notice of Intended Marriage. You must show a copy of the divorce order to the marriage celebrant before the wedding can take place.