Divorce - Sole Applicant (Australia)

Purpose of this Guide: Use this plan when your client is the sole applicant for a divorce and the parties are not applying jointly. This is the standard contested or unilateral divorce pathway, requiring formal personal service on the respondent. Open it at the retainer stage and follow it through to the divorce order and post-order limitation period advice.\n\nJurisdiction: Federal Circuit and Family Court of Australia (FCFCOA), applying the Family Law Act 1975 (Cth) and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. Filed via the Commonwealth Courts Portal at the registry for the applicant's state or territory. This plan applies nationally across all Australian registries.\n\nThe Process at a Glance: The lawyer confirms statutory eligibility - at least 12 months separation, and that one party is an Australian citizen, ordinarily resident, or domiciled in Australia. If the parties lived under one roof during part of the separation period, a corroborating affidavit from a witness is required. The Application for Divorce is drafted and e-filed via the Commonwealth Courts Portal. Once filed and sealed, the application must be personally served on the respondent at least 28 days before the hearing (or 42 days if served outside Australia). A professional process server is typically engaged and an Affidavit of Service is filed to prove service. If children under 18 are involved, the section 55A care arrangements must be detailed in Part F of the application and court attendance is mandatory. Where no children under 18 are involved and the respondent does not oppose, the Judicial Registrar may assess the matter in chambers. The divorce order becomes operative one month and one day after it is made, after which the 12-month limitation period for property settlement and spousal maintenance claims begins to run.\n\nKey Legislation and Case Law: - s 48 (irretrievable breakdown as the sole ground for divorce, evidenced by 12 months separation), s 49 (separation under one roof: corroborating witness affidavit required), s 55A (proper arrangements for children under 18 - mandatory court attendance if children are involved), s 55(1) (divorce order becomes absolute one month and one day after the making of the order), s 44(3) (property and spousal maintenance applications must be commenced within 12 months of the divorce order becoming absolute). - personal service obligations under Rule 2.25 (minimum 28 days before hearing within Australia, 42 days if served overseas). If the marriage was of less than two years, a counselling certificate or leave of the court is required under s 44(1B).