Divorce
From 9 December 2017, lesbians who married overseas or commenced to marry in Australia, became legally married in Australia.
Lesbians now have access to the Family law system in Australia if their relationship has broken down and they want to file an Application for Divorce.
Application for Divorce
You must have been separated from your spouse for 12 months and 1 day or longer to file an Application for Divorce. You can be separated and still living under the one roof.
You can apply for a divorce by yourself (a sole application) or together with your wife to the marriage (a joint application).
At the moment same sex couples cannot file an Application for Divorce online through the Federal Circuit Court portal. It must be filed at the Court.
Sole Application
If you file an application on your own, without your spouse, then you are the Applicant. Your spouse is referred to as the Respondent. With a sole application only you need to sign the application. There is a filing fee for lodging the Application. A fee of $910 is payable or you may be eligible for a reduced fee of $305. To see if you are eligible go to Guidelines for fee reduction.
You will need to serve the application on your spouse. Speak to a lawyer about the rules around service of an Application for Divorce.
If there a no children under 18 years of the marriage, then you do not need to attend Court. If there are children of the marriage under 18 years, then you or your lawyer will need to attend Court.
Joint Application
You can file a joint application for divorce with your spouse. If you do so, both you and your spouse are known as joint applicants.
To file a joint application one party completes the application and provides a copy to the other party to review and sign. One party can complete the document online, print and provide a copy to the other party for review. The signed application can then be filed online. You don't need to sere the application as it is a joint application.
If you file a joint application, you do not need to attend court.
How do you apply?
Click on the link here:-
What else?
If you have been married less than two years you will need to file a counselling certificate. For more information see the fact sheet on the Federal Circuit Court website: Have you been married for less than two years?
To obtain a certificate you will need to attend counselling. To arrange counselling contact the Family Relationship Advice Line on 1800 050 321. If you are unable to attend counselling with your spouse you will need to file an affidavit as to the circumstances why you can't.
You could be separated but still living in the same house. If this is your situation, then you will need to provide evidence to prove that there has been a change in the marriage by preparing and filing an affidavit. Read more about Separated but living under one roof here.
If there are children from your marriage who are under 18 years you will need to provide particulars of the care arrangements in Part F of the application including housing, care arrangements, schooling, health, contact with each parent, and financial support.
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.
Changing Your Name
If you are married, you do not need to formally change your name with the Registry of Births, Deaths & Marriages. If you want to take your wife's surname, you just need to show your marriage certificate as evidence to have personal documentation such as your driver's licence and passport changed to your married surname.
Summary of Main Points
-
You can file an application for divorce as a sole application, or a joint application with your spouse.
-
There is a filing fee of $910 for an application for divorce.
-
If you have been married for less than 2 years, you will need to file a counselling certificate with the application for divorce.
Footnotes
[i] s 28 Births, Deaths and Marriages Registration Act 1995 (NSW)
[ii]Department of Justice: Births, Deaths and Marriages (2016), viewed 4 October 2016, http://www.justice.tas.gov.au/bdm/changeofname/howtoregister
Note to readers: This information is intended as a guide to the law and should not be used as a substitute for legal advice. While every effort has been made to ensure that the information contained here is as up to date and accurate as possible, the law is complex and constantly changing (particularly relating to same-sex parenting) and readers are advised to seek legal advice in relation to their situation.
If you need legal advice, please contact Nicole Evans from Nicole Evans Lawyers at nevans@nelawyers.com.au.