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I’m in Sydney, Australia, and I want to file for divorce from my husband. We’ve been separated for two years, and I haven’t been able to get in touch with him since the separation. What steps should I take to file for divorce?

How to File for Divorce in Australia

In Australia, if you've been separated from your spouse for at least 12 months and you can't locate them, you can still apply for a divorce. Here are the steps you can take:

1. Prepare your application

You'll need to fill out the Application for Divorce form. This form can be obtained from the Family Court of Australia website or your nearest family law registry.

2. Gather supporting documents

You'll need to provide certain documents along with your application, such as your marriage certificate and, if applicable, documents relating to any children of the marriage under 18.

3. File your application

Once you've filled out the application form and gathered the necessary documents, you'll need to file them with the court. You can do this online through the Commonwealth Courts Portal or by mailing them to the family law registry.

4. Serve the divorce papers

In cases where you can't locate your spouse, you may need to seek permission from the court to serve the divorce papers in an alternative way, such as by advertising in a newspaper or through social media. The court will consider your circumstances and may grant permission for alternative service if it's satisfied that you've made reasonable efforts to locate your spouse.

5. Attend the divorce hearing (if required)

If the court is satisfied with your application, it will grant a divorce order. In some cases, you may need to attend a divorce hearing, either in person or via phone or video conference.

6. Finalize the divorce

Once the divorce order is granted, it becomes final one month and one day after the hearing (if a hearing is required). This means that your marriage is legally dissolved, and you are free to remarry if you wish.

It's important to note that divorce proceedings can be complex, especially in cases where one party cannot be located. I would strongly recommend seeking legal advice from a family lawyer to ensure that your rights and interests are protected throughout the process. They can provide you with personalized guidance based on your specific circumstances.

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Law Firm's Insights

Date

11 May 2022

Place

MELBOURNE

Respondent

AHL Legal

Judge

JOHNS

Highlights

The applicant, Tian, seeks a decree of nullity of her marriage to Hai, which was solemnized in Melbourne in 2017. In addition, she seeks a divorce order in respect of her marriage to Hai, which was solemnized in China in 2016. The applicant appears before the Court today in person. Hai is represented at Court today by his lawyer. The husband resides in China and has resided there since the parties' separation in 2019. In support of her application, the wife relies upon the following documents: - On 24 December 2021, the wife's application for a declaration as to nullity of marriage was transferred to Division 1 of the Federal Circuit and Family Court of Australia. - That view is bolstered having regard to the decision of Berman J in Zau & Huang [2015] FamCA 873, where his Honour considered circumstances similar to those the subject of the current application. - She deposes in her original Application for Divorce filed 3 August 2021 that she is working full-time as a health professional and that she is responsible for the financial support of the child. - The husband, in his response to the original divorce application, deposes that he has transferred funds to the wife to assist with the financial support of the child. - Having regard to the evidence of both the husband and the wife, I am satisfied that proper arrangements have been made for the care, welfare and development of the child of the marriage. - I am satisfied that the wife is an Australian citizen and was domiciled and ordinarily resident in Australia when her original Application for Divorce was filed. - I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Justice Johns.

Judgment

The text below is a copy of the court's reasons for judgment in a case in which the marriage between the applicant and respondent is declared null and void. The court allows for a divorce to take effect 30 days from the date of this order, and all other proceedings in the case are dismissed.

Legislation

1.Family Law Act 1975 (Cth) s 51

2.Marriage Act 1961 (Cth) ss 22B, 23, 23B, 39, 39A, 48, 55A, 113

Other FAQs You may Interested In

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