Divorce – Not Always a Simple Process

You may have seen our article on ‘How to Apply for a Divorce?’ and it appears that it can often be a straightforward process.

However, sometimes, this is not always the case.

Below are some of the more common issues that may arise in a divorce application and become applicable in individual circumstances.

Sole Application – Serving the Divorce

Sometimes it is necessary to complete a sole application, such as when you no longer can communicate with your wife or husband, or they are unwilling to participate in the divorce process. If a sole application for divorce is being made, then you are required to serve the application on the other party.

You can serve your application for divorce on the other party by posting it to them via mail. However, this requires the other party to sign an ‘Acknowledgement of Service’ and either return it to you or your lawyer.

If the other party does sign the Acknowledgment of Service, you are then required to complete an affidavit stating you served the application by post and that you recognise the other party’s signature on the acknowledgement as being that of your wife or husband’s. These documents are then filed with the Court.

But what happens if the other party refuses to sign the acknowledgment of service?

The other option is to personally serve the divorce application on the other party. This means that someone either physically hands the divorce application to the other party or leaves the application in the other party’s presence. You cannot personally serve the divorce application yourself on the other party – you will either need a friend, family member or process server to serve the application.

Usually, many people opt to engage a process server as they are professional and aware of service requirements. If you engage a process server, you may need to provide them with a photo of the other party so they can identify them. Once the other party has been served, an affidavit is then filed with the Court to prove that service of the application has been made.

Issues arise however when either the other party actively avoids being served with the divorce application or the other party cannot be located.

Situations where the other party cannot be served will require an Application in a Proceeding to be made seeking either ‘substituted service’ or ‘dispensing with service’. If this is needed you will be required to attend Court, whether by phone or in person.

The application must be accompanied by affidavit evidence which should include the following:

If you are asking for substituted service, what method will most likely bring the divorce application to the attention of the other party (for example, Facebook, email, sending it to a family member).
What steps have been taken to serve the other party – for example has a process server been engaged and attended the other party’s house.
What cost have been incurred or likely be incurred.

Based on the evidence and submissions on the application, the Court will then make appropriate orders regarding service of the divorce application.

Separated – But Still Living Together

Sometimes after a husband and wife separate, they continue living together. This can be for many reasons including:

The need to care for children;
Sharing costs to reduce living expenses;
Convenience.

One of the requirements for divorce is that you have been living separately for 12 months – this provides evidence that the relationship has irretrievably broken down.

So, what if you have been living together in the past 12 months?

You will need to prove to the Court that you really are ‘separated’. This will require affidavits both from you and the other party (for a joint application), or if the other party is unwilling to provide one or if it is a sole application, then an independent person.

The affidavit should contain the following information.

Why you continued living together;
The arrangements for any children under 18 years of age while living together;
Any change in sleeping arrangements after separation – such as separate beds;
Change in household chores – such as doing separate washing;
The division of finances, such as paying for things separately;
And anything else that indicates the relationship is over, such as informing friends and family.

Different Names

Sometimes an individual may change their name from when they were married, used a different name which has been recorded on their marriage certificate or an administrative error has occurred in recording a name.

If this has occurred, you will need to prove that you are the person named on the marriage certificate. To this you will need to complete an affidavit. The affidavit should set out:

Your birth name;
Your married name;
Explain the difference in your current name and the name on your marriage certificate;
A statement to the effect that you are the same person named in the marriage certificate as is applying for the divorce.

The above are just a few of the issues that could arise during a divorce application.

If you are considering making an application for divorce, call our Family Law team a Miller Sockhill Lawyers today on 07 5444 4750 for expert advice and guidance on the divorce application process.

Read other articles written by our experienced Family Law team including Spousal Maintenance and Separation and Divorce – How these affect your Will?