I’ve Been Served with Divorce Papers – What Now?

27 October
Divorce

If you’ve been served with an Application for Divorce, it means that your former partner has applied to the Federal Circuit and Family Court of Australia to legally end the marriage.

Whilst this can be an emotional time, it’s important that you understand the legal consequences of the divorce and what you may need to do. Seeking legal advice is always a good idea.

In the divorce documents, you will be referred to as the ‘Respondent’, and your former partner will be referred to as the ‘Applicant’.

How will the divorce papers be served?

Typically, you will receive the divorce papers in person by an individual known as a ”process server”. A process server is a third-party who is responsible for the delivery of legal documents.

The process server will attend your home or work to hand the divorce papers to you in person. They will also ask you to sign an “Acknowledgment of Service” form to confirm that you have received the documents.

Alternatively, you may receive the divorce papers by post from your former partner or their legal representative. In this case, you will need to sign an Acknowledgement of Service and provide the signed copy by return post.

What documents should I receive with the divorce papers?

When you were served with the divorce papers, you should have received the following bundle of documents:

A copy of the Application for Divorce;
A copy of the Affidavit for eFiling as signed by your former partner;
A copy of the Marriage, Families and Separation brochure; and
any other documents the other party has filed with the Court, such as an Affidavit addressing separation under the same roof or a name discrepancy.

What do I need to do if I am served with a Divorce Application?

If you agree with the divorce

You should read the divorce paperwork carefully to check whether you agree with the facts detailed in the Application for Divorce.

If you agree with the contents of the Application for Divorce and want the divorce to be granted, you do not necessarily need to do anything. You also do not need to attend the Court hearing if you do not want to. The divorce hearing is likely to proceed in your absence, and you will be notified that the marriage has ended.

If you don’t agree with the divorce

If you do not want to get divorced or disagree with any of the statements in the Application for Divorce filed by your ex-partner, you will need to file a Response to Divorce with the Court.

I want to file a Response to Divorce

If you either disagree with the facts in the Application for Divorce or do not want the divorce to be granted, you must file a Response to Divorce.

A Response to Divorce is a Court form which must outline what you do not agree with, for example:

You disagree with the date of separation;
There is a spelling or administrative error;
You want to provide the Court with further information before they consider the divorce.

If you file a Response to Divorce, you or your lawyer must attend the divorce Court hearing, and you must serve the Response on your ex-partner.

When does the Court grant a divorce?

The Federal Circuit and Family Court of Australia will grant a divorce if:

the parties were legally married;
the Court has jurisdiction to consider the divorce;
the parties have been separated for at least 12 months from the time the Application for Divorce was filed, and the marriage has broken down irretrievably with no prospects of reconciliation;
if there are children of the marriage under 18, there are appropriate arrangements in place and
the Applicant has filed the required documents correctly.

If the divorce is granted, it will be finalised one month and one day after the hearing.

What happens after a divorce is granted

An Application for Divorce will only legally end a marriage. It will not create any legally binding parenting orders regarding the children, nor will it resolve any outstanding property settlement issues.

Once you are divorced, it is important to be aware that the divorce will trigger a time limit for property settlement matters. If the parties have any outstanding property settlement issues, they must either:

reach an agreement together and either file an Application for Consent Orders with the Family Courts within 12 months of the divorce order; or
enter into a Section 90D Binding Financial Agreement, with both parties having independent legal advice; or
commence contested litigation in the Federal Circuit and Family Court of Australia.

If the above actions are not taken, there is a risk that you may not be able to resolve any outstanding property settlement dispute with your ex under the Family Law Act 1975 as amended (Cth).

You can read more about time limits related to your property settlement in our earlier article, “Time Limits for Divorce and Property Settlement”.

How can a family lawyer help?

You should speak to our family law legal team as soon as possible if you are served with an Application for Divorce. We will ensure you are fully informed about your obligations and the impact of divorce on matters related to parenting or property settlement.

If you would like to discuss your situation in more detail, you can book a free no obligation phone consultation with one of our lawyers. We assist separated couples across Australia with all aspects of separation and family law.