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11 Family Law


Summary

When clients apply for divorce, JPs are often asked to witness the subsequent application, affidavit and acknowledgement forms provided by the Federal Circuit Court of Australia or the Family Court of Australia. The papers and forms involved with serving divorce applications on spouses are several in number and must be processed and witnessed in specific orders. It is incumbent on JPs to be familiar with the main forms and processes.

Application for Divorce Form

It is good practice for JPs to be aware of the prerequisites when applying for divorce, even pointing out to the applicant(s) when these are not met. However this should not preclude a JP from witnessing a divorce application affidavit. The final determination of prerequisites is performed by a Registrar of the Family Court when the application is registered. The prerequisites for at least one of the applicants are:
  • Marriage broken down irretrievably
  • Regard Australia as home and intend to live indefinitely in Australia
  • An Australian citizen by birth or descent 
  • Australian citizen by grant of an Australian Citizenship
  • Lived in Australia for 12 months immediately before filing for divorce
  • Separated (see fact sheet for definition) for at least 12 months and 1 day
Either a spouse (single applicant) or the couple (joint applicants) may apply online (e-filed application) or complete the Application for Divorce form contained in the Application for Divorce Kit. In either case the applicant(s) will present the Part G affidavit on paper for witnessing.

The witnessing process for this Part G affidavit is straightforward:
  1. Obtain ID from the applicant(s) and confirm:
    • the name(s) in Part A match
    • the date of separation in Question 14 is at least one year and one day ago
  2. Do not cross out any incomplete sections, further information may be added prior to registration with the court
  3. Put the applicant(s) under oath or affirmation as for any affidavit
  4. Have the applicant(s) sign Part G called Affidavit of Applicants in front of the JP
  5. Confirm the signature(s) from the ID document(s)
  6. For each applicant present enter the place, date, full name of JP, and tick title box, affix your signature, seal and registration number
  7. Record the document type in your log book
The applicant(s) will eventually register the divorce application with the appropriate court.

See the section on Family Law for special requirements for affidavits with insertions and annexures submitted to the Family Law Court registry.

Service of Divorce Application Documents

Service involves delivering or posting court documents to another party in accordance with rules of the court. After registration with the court a sole applicant must arrange for the spouse to receive a copy of the Application for Divorce, a copy of the Marriage, Families and Separation brochure, and any other documents filed with the court (excluding marriage certificate). The documents mentioned below are contained in the Divorce Service Kit.

Service by Post

Key documents used:
  • Affidavit of Service by Post (Divorce)
  • Acknowledgement of Service (Divorce)
Respondent signs and returns Acknowledgement to applicant. Final steps:
  • Applicant signs Affidavit of Service by Post (Divorce), JP witnesses
  • Attaches signed Acknowledgement of Service (Divorce), JP completes Annexure Note

Service by Hand

Key documents used:
  • Affidavit of Service by Hand (Divorce)
  • Acknowledgement of Service (Divorce)
  • Affidavit Proving Signature (Divorce)
From the applicant the server (anyone over 18 who is not the applicant) receives:
  • Sealed copy of divorce application
  • the Marriage, Families and Separation Brochure
  • Acknowledgement of Service (Divorce)
  • If the server does not know the respondent, identification such as (1) a photo or (2) full names of applicant and respondent or (3) accompanied by a person known to the respondent
The server delivers these document to the respondent (spouse) in person, and asks the spouse to sign the Acknowledgement of Service (Divorce) and return it to the server.

Final steps for server and applicant:
  1. Server signs Affidavit of Service by Hand (Divorce) attaching any identification used to identify respondent, JP witnesses,
      and,
  2. Attaches signed Acknowledgement of Service (Divorce), JP completes Annexure Note
  • (Optional) Applicant signs Affidavit Proving Signature (Divorce) attaching a copy of the signed Acknowledgement of Service (Divorce), JP witnesses

Signed Acknowledgement of Service not Received

If after service by post no signed Acknowledgement of Service (Divorce) is received the applicant has two choices:
  1. Try service by hand
  2. Apply to the court for (1) a substituted service or (2) dispensation of service.

References