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Manage Your Own Divorce - Divorce hearing

Divorce hearing

This factsheet is to assist you in managing your own divorce hearing. It is recommended you read this factsheet together with the following factsheets:

If you have been separated under the same roof it is recommended you read Separation under the same roof (factsheet 4).

Attending the hearing

If your application is a sole application and there are children under 18 (including adopted children, foster children or children living with you from a previous relationship of either you or your spouse) you must attend the hearing; otherwise it is your choice whether to attend.

If you do not attend and the court requires more information, they will write to you and give you another date to go to court.

Preparing for Court

  • Check your Application for Divorce for the date and time your matter is listed.
  • Aim to get to court at least 20 minutes before your matter is listed.
  • Take with you a copy of your court documents, a notepad and pen.
  • When you get to court, find out what courtroom your matter is in. There should be lists on the wall, or you can ask the court staff. Wait outside the courtroom until you are called into court.

Court Etiquette

  • Dress like you would if you were attending a job interview.
  • When you enter and leave the courtroom, you should bow your head slightly.
  • When your name is called, sit at the bar table. If you are the applicant (the person who filed the Application for Divorce), sit to the left of the table. If you are the respondent, sit to the right.
  •  Stand when the registrar speaks to you and when you speak to the registrar.
  •  Divorce matters are usually dealt with by a registrar. You should refer to them as "registrar" (e.g. "good morning registrar").

The Hearing

The hearing usually only takes a few minutes. The registrar will read your documents and may ask you some questions.

If there are problems with your application the registrar may:

  • "stand the matter down" or "stand the matter in the list" to allow you time get some advice from a duty lawyer. You will have to return to the courtroom after you have seen a duty lawyer so that the registrar can
  • decide what to do next.
  • "adjourn the matter" by giving you another court date and some instructions on what you need to do before the next date.
  • Transfer your matter to a Federal Circuit Court judge on another day. Get legal advice if this happens.

The Hearing Checklist

Use this checklist to make sure you have the information needed to be granted a divorce.

Is the marriage proven?

Have you provided the court with your marriage certificate (or in some limited cases where the marriage certificate cannot be obtained, an affidavit proving the marriage)?

Does the court have jurisdiction?

If you are not an Australian citizen by birth, bring a copy of your certificate of Australian citizenship and/or your passport, which shows that you are legally in the country and have been living in Australia for at least 12 months before filing your application. Try to file a copy of these documents with the court prior to your court date.

Has the marriage broken down irretrievably?

Have you been separated for at least 12 months before filing your application? Is there no possibility of you getting back together?

If you were married for less than two years at the time of filing for divorce, have you and your spouse attended marriage counselling or obtained an exemption?

Are you separated under the same roof?

If you are separated but have been living under the same roof for some or all of the 12-month separation period, you will need to file an affidavit explaining your situation. It is a good idea to attend the hearing if you have been separated under the same roof. See Separation under the same roof (factsheet 4).

Has your spouse been properly served?

If the application is a sole application you need to serve your spouse in accordance with the court rules. See Serving your divorce documents (factsheet 2).

If your spouse was served less than 28 days before the hearing date (or less than 42 days if served overseas) your hearing will be adjourned to a later date, unless your spouse agrees to have the matter dealt with on the day. Your spouse will need to tell the court that they agree to "short service" of the documents by either writing a letter to the court or attending court on the day.

Are there are suitable arrangements for the children?

The court will want to know about the living arrangements and financial support for any children of the relationship under 18 (including any adopted children, foster children, or children of either you or your spouse from a prior relationship). You should be prepared to answer questions about this.

The court will not make any orders about the children at your divorce hearing. Parenting and property matters are dealt with separately from divorce proceedings. If you think you need orders about your children or your property, you should get legal advice.

After the Hearing

  • If the registrar grants the divorce, it does not come into effect (become final) until one month and one day after the order is made.
  • You can ask the court to make an order that the divorce becomes final sooner. The court will only do this in limited circumstances. If you want the time period shortened, you should set out your reasons in an affidavit that you serve on your spouse before the divorce hearing. If your spouse does not agree, the court may not make the order.
  • In some circumstances either you or your spouse may appeal the divorce order. You should get urgent legal advice. You cannot appeal after the divorce order becomes final.
  • If you and your spouse get back together after the divorce order was made but before it becomes final, you may apply to the court to "rescind" or cancel the divorce order. You should get legal advice. You cannot apply to rescind the order after it becomes final.
  • Once the divorce order becomes final you will be sent a copy in the post. This is proof that you are divorced. If in future you need a replacement of the divorce order you should contact the Family Law Courts on 1300 352 000.
  • You should not plan to remarry until AFTER you receive a copy of the divorce order.
  • There are time limits for property settlement and/or spouse maintenance. These applications must be filed at court within 12 months of your final divorce order.

Any will previously made by you or your spouse is likely to be affected by the divorce order. You should get legal advice.

Check List for Divorce

1.   Complete the Application for Divorce

2.   Sign the Application for Divorce in front of a JP or lawyer

3.   Make two copies of the Application for Divorce and any supporting court documents

4.   File:

  • original and 2 copies of your application     
  • original and two copies of any other court documents (e.g. an affidavit)  
  • copy of your marriage certificate       
  • citizenship certificate or passport (if required)      
  • application for a reduction of the filing fee, with a copy of your pension card or financial details (if required)

5.   Pay the filing fee (full rate or reduced)      

6.   If required, arrange to serve your spouse and file proof of service with the court. See: Serving your divorce documents (factsheet 2)     

7.   If required, attend the hearing. See: Divorce hearing (factsheet 3)          

8.   Obtain your divorce order from the court  

9.   Remember property settlement and/or spouse maintenance applications must be filed within 12 months of divorce     

10. Update your will 

Where are the Federal Circuit Courts?

463 Kiewa Street, Albury NSW 2640

Level 1, 26 Gordon Street, Coffs Harbour NSW 2450

Corner Macquarie & Wingewarra Streets, Dubbo NSW 2830

2/29–31 Molesworth Street, Lismore NSW 2480

61 Bolton Street, Newcastle NSW 2300

1–3 George Street, Parramatta NSW 2124

97–99 Goulburn Street, Sydney NSW 2001

1/43 Burelli Street, Wollongong NSW 2500

For more information online about applying for divorce see www.familycourts.gov.au 

Help to manage your own divorce

Legal Aid NSW runs free classes to help you fill out the Application for Divorce. Ask us to arrange an interpreter when you book. Visit www.legalaid.nsw.gov.au/divorce-classes.

If there are no classes, you can make an appointment to see  a lawyer for free advice. Legal Aid NSW offices can be found on our website under Contact Us, or call the Family Law Early Intervention Unit on 1800 551 589.

LawAccess NSW provides legal information, referral and, in some cases, advice. Call 1300 888 529.

If you need an interpreter call the Translating and Interpreting Service (TIS) 131 450.

If you are hearing impaired call the National Relay Service (NRS) 133 677.

This factsheet is one of four factsheets about managing your own divorce. It is intended as a general guide to the law. It should not be relied on as legal advice and it is recommended that you talk to a lawyer about your particular situation. At the time of publishing, the information shown is correct, but may be subject to change. If you need help, call LawAccess NSW on 1300 888 529.

You can order printed copies of this factsheet from www.legalaid.nsw.gov.au/publications

September 2014