If you have received a copy of an Application for divorce, this means your spouse has applied for a divorce and you have been served. In a sole application, your spouse (who filed the application with the Court) is known as the applicant and you (as the other party) are known as the respondent.
You should read the application as soon as possible and acknowledge you have been served.
What documents should I receive?
To be properly served, you should receive the following documents from your spouse:
- a copy of the Application for divorce
- a copy of the Marriage, Families and Separation brochure
- a blank Acknowledgment of service form, to be signed by you. See How do I acknowledge I have been served? below
- a copy of the Affidavit for eFiling signed by your spouse, and
- any other documents filed by your spouse at the time of the Application for divorce including the Marriage Certificate, any Affidavit – Family law and child support in support. These additional documents will vary.
How do I acknowledge I have been served?
When you were served with the Application for divorce, you should have also been provided with a form called an Acknowledgment of service (Divorce). You should sign the Acknowledgment of service (Divorce) and return it to your spouse. If you were served:
- by hand (in person, by someone other than your spouse, handing you the documents), you should have already signed the Acknowledgment of service (Divorce) and returned it to the person who served you.
- by post, you should have been provided with a pre-paid envelope. Place the signed Acknowledgment of service (Divorce) into that envelope, and post it like any other letter. You should do this as soon as possible. If you do not receive a pre-paid envelope when you are served, you are still required to sign the Acknowledgment of service and post it to your spouse.
- via your lawyer, your lawyer should sign the Acknowledgment of service (Divorce) on your behalf, and provide it to your spouse.
The applicant will then file the signed Acknowledgment of service with the Court to show that you have been served.
What else do I need to do?
If you agree with the facts in the application and want the divorce granted, you are not required to do anything further. You are also not required to attend the hearing. See Divorce hearing for details.
If you believe there is an error in the Application for divorce filed by your spouse or you do not want the divorce to be granted, you will need to file a Response to divorce as outlined below.
If the divorce is granted, it will be finalised one month and one day later, unless a special order is made by the Court to shorten that time. You will then be able to access your divorce order online from the Commonwealth Courts Portal. For details see How do I prove I am divorced?.
What if the application has errors of fact?
If you want the divorce granted but disagree with the facts in the Application for divorce, you may file (and serve) a Response to divorce. You need to state which facts you disagree with in the Response to divorce.
The errors might, for example, be that dates of birth are incorrect or the details regarding the children have changed. If you file a Response to divorce, you must attend the divorce hearing.
Can I oppose a divorce application?
If you do not want the divorce granted, you must complete, file and serve a Response to divorce and attend the divorce hearing (see Divorce hearing).
If you have been separated for more than 12 months, you can only oppose the divorce if:
- there has not been 12 months separation as alleged in the application, or
- you allege that the Court does not have jurisdiction to grant the divorce.
Note: jurisdiction means that you do not believe the Court has the legal power or authority to make a decision, such as a divorce order. See Can I apply for a divorce? for details.
You need to clearly set out the reasons why you do not want the divorce to be granted in the Response to divorce.
When do I file the Response to divorce?
If you want to file a Response to divorce, you need to file it:
- if served in Australia – within 28 days of the application being served on you, or
- if served outside of Australia – within 42 days of the application being served on you.
For information about filing the Response see How do I eFile?
You must also serve the Response to divorce on your spouse. See How do I serve family law documents? for a step-by-step guide.
If you file a response because you disagree with some of the facts in the application, you do not need to attend the court hearing. However, if you file a response opposing the divorce application you should attend the hearing. If you do not attend, the Court may make a decision about the divorce in your absence. You will only need access to a telephone to attend the divorce hearing electronically. See Divorce hearing.
Practice directions
Practice directions are procedural guidelines issued by the Court. They complement legislation, rules and regulations. They provide specific direction about the practice and procedure that must be followed in certain types of proceedings.
Practice directions are issued by the Chief Justice/Chief Judge upon advice of judges of the Court, pursuant to the Court’s inherent power to control its own processes, as well as the power under the Federal Circuit and Family Court of Australia Act 2021 for the Court to give directions about the practice and procedure to be followed in a proceeding.
In general, practice directions are issued to:
- complement particular legislative provisions or rules of court
- set out more detailed procedures for particular types of proceedings, and
- notify parties and their lawyers of matters which require their attention.
Below are links to the practice directions that apply to this area of law:
***Disclaimer – The above information was taken from the Federal Circuit & Family Court of Australia website as accurate in July 2024. If any changes are made by the court from that date they may not be reflected in this post
