What is the difference between a joint and sole application for divorce?
Applying for a divorce is the easy part of a separation … depending on whether you complete a Joint Application or a Sole Application. Here is how they both work.
JOINT APPLICATION FOR DIVORCE
A Joint Application is completed by both you and your spouse. It simply requires you to wait a minimum period of 12 months from your separation and complete an online application at the Family Court website, which you return/file with your marriage certificate and filing fee.
There is no need for you or your spouse to attend court.
So long as all necessary information is provided, the divorce will be granted around two months from the filing date. You will receive notification by mail.
If a joint application is possible, it is preferable in terms of ease.
SOLE APPLICATION FOR DIVORCE
The other option is to file a Sole Application for divorce, but this is more complicated. You may need to apply for a Sole Application because:
- You spouse does not want to get divorced
- You are unable to work with your spouse on a Joint Application
- You are unable to locate your spouse
You can complete a Sole Application online at the Family Court website, however you are required to serve the application to your spouse so he is notified of the upcoming divorce hearing. Here are your questions answered.
HOW DO I SERVE DOCUMENTS FOR A SOLE DIVORCE APPLICATION?
When you complete your Sole Application for divorce online, you will be provided with documents which your spouse is required to receive, read and sign. This is done by ‘service of documents’.
Documents must be:
- Served at least 28 days prior to the hearing date (if you spouse is in Australia)
- Served at least 28 days prior to the hearing date (if your spouse is overseas)
- Delivered by hand or by post
- If delivered by hand, it must be a person other than yourself, possibly a friend, relative or Process Server
BUT I DON’T KNOW WHERE MY SPOUSE LIVES TO SERVE HIM
If you don’t know where your spouse lives, you will be unable to serve documents to him. In this case, you must first prove you have tried to locate him using the below methods, all of which must be recorded in an Affidavit:
- Try his last known address
- Ask his family and friends
- Ask at his place of employment
- Place notices in newspapers
- Anything else to prove you have tried to find him
You are then able to apply for either:
- A substituted service i.e. serve the documents to another person who can pass them to your spouse
- An order to dispense with service
For more information about how the service of documents works, or if you are having problems, watch this video:
WHAT HAPPENS WHEN HE RECEIVES THE APPLICATION?
When your spouse receives the Application:
- Your spouse will be required to sign an Acknowledgement form to confirm he has received it
- Then you must sign an Affidavit of Proof of Signature to verify his signature
- Finally, the person who served the documents must sign an Affidavit of Service with details of the service i.e. time, date and location
Once you have obtained all these documents, they must be filed to the Court before the hearing date.
WHAT IF MY SPOUSE REFUSES TO SIGN?
If you spouse refuses to sign the application, you will have to use a Process Server (provided with a photo of your spouse) to deliver the documents. The Process Server will then sign an Affidavit to say the documents have been successfully served.
DO WE NEED TO ATTEND COURT FOR A SOLE DIVORCE APPLICATION?
You will be required to attend court for the hearing for your Sole Divorce application if you and your spouse have a child who is 18 or under.
Your spouse will only be required to attend court for the hearing if he opposes the divorce.
WHAT IF I AM UNABLE TO MAKE IT TO COURT?
If you are unable to get to court to attend the hearing in person, you can request to appear by telephone with the Telephone/Video link attendance request form.