In previous family law articles, we have explained in detail the distribution of property and the maintenance of children when the relationship between registered marriage and de facto marriage (de facto) breaks down, but since there is no concept of premarital property in Australian law, a binding property agreement is needed for property planning. In addition, if one of the parties to the marriage is subjected to domestic violence, he can apply to the police or the court for a domestic violence restraining order and use it as evidence in the divorce application. In this issue, we will make a brief analysis of what kind of application documents are needed for divorce in Australia and the process of divorce.

Divorce applicant

First of all, unlike in China, which sometimes only requires the civil affairs bureau of the domicile of both parties to the marriage to register for divorce, divorce in Australia must be filed with the Federal Circuit Court (The Federal Circuit and Family Court of Australia), and the court will make a divorce judgment (divorce order).

In addition, the prerequisite for applying for divorce in Australia is that the Australian court must have jurisdiction over the marriage. If the applicant is married in Australia, he can apply for divorce directly to the Australian court. However, if the applicant is married outside Australia, the applicant or his or her spouse must meet one of the following requirements to apply for divorce in Australia:

(a) settle in Australia;

Acquired Australian citizenship by birth (Australian citizen by birth); or acquired Australian citizenship by blood relationship (Australian citizen by descent); or approved to become an Australian citizen (Australian by grant); or

3. a person who is a permanent resident of Australia and has lived in Australia for at least 12 months prior to the filing of the divorce application.

Divorce Application Time

According to Family Law Act 1975(cth), in Australia, divorce applications must be submitted to the Federal Circuit Court after the parties to the marriage have been separated for more than 12 months and there is no possibility of recombination, otherwise the court will not accept them.

S48 (2)Subject to subsection (3), in a proceeding instituted by such an application, the ground shall be held to have been established, and the divorce order shall be made, if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order.

However, Australia's Family Law Act 1975(cth) S49 also stipulates that the definition of "separation" (Separation) is not limited to the literal meaning. If both parties to a marriage still live under the same roof for reasons such as taking care of their children and economic pressure, they can also be considered as separation when certain conditions are met, but this requires additional evidence to be provided to the court, such:

• Both parties do not live in the same room;

• Reduction of joint outings or other joint activities by both parties;

-Refusal of one of the parties to the marriage to share household chores;

-Financial splitting between the two parties, e.g. two persons with separate bank accounts, etc.

S49 Meaning of separation

(1) The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties.

(2) The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.

In addition, if the marriage is less than two years old, according to the provisions of the Family Law Act 1975 (CTH) S11E-S11G, the court will require divorce counseling (Counselling) before one of the parties to the marriage file for divorce. The purpose of the consultation is to explore the possibility of saving the marriage through the help of a counselor. After the consultation, the counselor will give the parties to the marriage who are being consulted a document certifying that they have participated in the consultation (Counselling Certificate). If after the consultation, the parties to the marriage still apply for divorce, then the application needs to be accompanied by a certificate of consultation. If the parties to the marriage do not wish to attend or are unable to attend divorce counselling, they will need to apply to the court for a waiver of this requirement. However, an affidavit must be attached to the filing of the divorce application stating why the parties to the marriage cannot participate in the consultation.

Documents Required for Divorce Application

In Australian divorce, the documents provided by the parties to the court usually include the following categories:

1. Marriage certificate. In the case of a Chinese marriage certificate, a translator certified by the Australian Translation and Accreditation Authority (NATTI) is required to translate the marriage certificate into English, and the translator must also attach an affidavit to prove that the translation is true and accurate;

2. Certificate of citizenship;

3. birth certificate;

4. If both parties are not Australian citizens, proof of long-term residence in Australia by at least one party, such as a visa letter or medical insurance card, is required;

5. If you need to apply for divorce fee reduction, you also need to attach HEALTEH CARE health card when submitting the application. In the 2023-2024 fiscal year, the Australian Federal Circuit Court charged a divorce filing fee of A $1060.

Divorce Application Process

In Australia, there are two types of divorce applications:

1. Unitary application for divorce (sole application)

2. Both parties jointly apply for divorce (joint application)

• Unitary application for divorce (sole application)

If it is a unilateral application for divorce, the applicant can only sign the application. However, the applicant needs to formally deliver the divorce application and other documents to the other party in accordance with the requirements of relevant laws and regulations, either by mail or in person.

However, in face-to-face delivery, the applicant cannot deliver the documents in person, and must arrange for a person over the age of 18 to deliver the documents. This person is called sever, and sever can be a family member, a friend, or a professional deliverer. If the other party to the divorce petition is in Australia, the delivery must be completed 28 days before the start of the court hearing. If the other party is outside the country, delivery must be completed at least 42 days before the start of the court hearing. In addition, in the case of a unilateral application for divorce, both parties must appear in court if they have children under the age of 18.

Both parties apply for divorce (joint application)

If both parties to the marriage agree to divorce, they can jointly apply for divorce. In this case, it is only necessary for one party to complete the application, provide a copy to the other party, and the other party to check and sign it. In the case of a joint application for divorce, as with a unilateral application for divorce, the parties to the marriage do not need to appear in court, except that the parties have children under the age of 18.

After that, according to Australia's Family Law Act 1975 (cth) S55, when the conditions of the divorce application are met, the court will announce the approval of the divorce application in court. The divorce judgment takes effect one month and one day after the date of the decision of the Federal Circuit Court.

S55 When divorce order takes effect

(1) Subject to this section, a divorce order made under this Act takes effect by force of this section:

(a) at the expiration of a period of 1 month from the making of the order; or

(b) from the making of an order under section 55A;

whichever is the later.

Application of Australian Divorce Judgment in China

Both parties to a divorce in an Australian court will generally receive a divorce certificate mailed by the court and a divorce judgment. Among them, the divorce certificate includes the names of both parties, gender, effective date of divorce, etc., which is a simple statement of the facts of the divorce; at the same time, the divorce judgment will generally explain in detail the issue of child custody and the division of property between the two parties. In practice, many divorced couples in Australia will purchase real estate, remarry and settle down in China. At this time, relevant domestic government agencies will require the applicant to issue a divorce judgment certification issued by the Chinese Embassy or Consulate in Australia before they can recognize the use of the divorce judgment made by the Australian court. At this time, relevant certification of the Australian divorce judgment is required.

• Materials required to certify an Australian divorce judgment

1. Scanned copy of Australian court judgment;

2. Scanned copies of passports of both parties;

3. Notarized certification application form.

Steps for Certification of Divorce Judgment in Australia:

1. First of all, the Australian divorce judgment needs to be notarized by a local notary in Australia;

2. After that, the Australian divorce judgment was certified by the Australian Department of Foreign Affairs and Trade;

3. Finally, the Australian divorce certificate is certified by the Chinese embassy or consulate in Australia.

• Duration of certification

The whole process of Australian notarization and embassy certification is about 8 weeks.

To sum up, the applicant for divorce in Australia can be married in Australia or outside Australia, but the spouse who marries outside Australia must settle in Australia or have Australian citizenship. In addition, divorce applications in Australia must be filed in the Federal Circuit Court after 12 months of separation, but the word "separation" need not be limited to its literal meaning. As for the documents required for divorce applications, it is important to note that Chinese marriage certificates need to be translated by NATTI-certified translators to be valid. Finally, the divorce judgment made by the Australian court needs to be certified three times by the Australian notary, the Australian Department of Foreign Affairs and Trade, the Chinese Embassy in Australia or the consulate consul before it can be used in China.