Divorce Application by Chloe James

This affidavit is part of a divorce application filed by Chloe James. It outlines her marriage to Dimi Romano in Sicily on February 1st, 2015, and their subsequent difficulties leading to a proposal for selling their shared matrimonial apartment. The client's goal is to purchase a separate home with the child while granting visiting rights to the father, who lacks English fluency.

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Family Law
Letter of Advice
15-Mar-18
(Student Details: )

Family Law
XYZ Solicitors
(Your Name)
Paralegal
XYZ Solicitors
421, King Street
Sydney, NSW- 2019
15th March 2018
Dear Ms Chloe James
Re: Divorce Application
This is with reference to the information sought out regarding the legal procedures and
requirements in context divorce. This letter covers a detail on the process of how divorce can be
undertaken by a person, the courts where applications can be filed in, the time limitations and the
costs which were involved, and the other pertinent details based on the requirements laid down
by the client.
Before staring the divorce process, certain prerequisites have to be fulfilled. The first
requirement is to check that he couple had been separated for over 12 months. The court has to
be satisfied that the marriage has ended and it has to be proved that the couple has been separated
with no chance of them getting back together1. Where the couple leaves under one roof even
after separation, they would have to provide extra information to the court. In such a situation,
there is a need to provide an affidavit with the divorce application. This affidavit is the written
statement which allows for the evidence to be provided. In this affidavit, the client needs to
1 Legal Aid, Manage Your Own Divorce - Applying for a divorce (2018)
<https://www.legalaid.nsw.gov.au/publications/factsheets-and-resources/manage-your-own-divorce-applying-for-a-
divorce>
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provide that there had been a change in marriage, which could be sudden or gradual, to show that
the couple has separated. There is a need to explain on the changes in the sleeping arrangements,
the reduced family outings or shared activities, the shortfall in performance of household duties,
the division of finances in terms of separate bank accounts, and other examples to show that the
marriage has broken down, in terms of family and friends being notified. There is also a need to
explain in this affidavit the reason for leaving in the same house, the living arrangements for
children below 18 years while the couple lived under one roof and the government benefits
which have been advised for separation2. In the present instance, the couple had not been
separated for a minimum of 12 months. They were living under the same roof. As a result of this,
there would be a need of filing an affidavit, covering the aforementioned details, with the divorce
application.
Where the individual is married for a period of less than two years, there is a need for the couple
to try marriage counselling before an application can be made for divorce. However, in certain
situations, the court can permit the divorce application to be filed without getting through
counselling. In the present instance, the individuals had been married for over two years as the
separation came after over 25 months. It is also crucial that the spouse is made aware of being
served with the divorce application. In order to make a divorce application, certain important
documents have to be submitted. The first document is the divorce application. This is followed
by a copy of marriage certificate3. Where an individual does not have marriage certificate, there
is a need to get copy from Births, Deaths and Marriages in the state where the individual was
married. In case a person is married overseas, they have to contact the relevant authority in such
2 Family Court of Australia, Separated but living under one roof (01 March 2013)
<http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/reports-and-publications/publications/separation/
separated-but-living-under-one-roof>
3 At 1
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nation for getting a copy of marriage certificate. Where the individual is not able to get a copy of
marriage certificate, there is a need to file an affidavit setting out the reasons for not being able
to provide the certificate4.
There is also a need to attach the passport or the copy of citizenship. This is required to show that
the individual is either Australian, or has stayed in Australia for a minimum period of 12 months
in legal manner. There is also a need to make payment of the filing fee, which at current is $845.
There are changes being brought in the filing fee from time to time. Where the applicant can
show that they faced financial hardships, they can get the fees reduced to $2805. As the client is
receiving Austudy payment, the client can file an application for reduction of payment of divorce
or decree of nullity. This would require the documentary evidence to be submitted with the
application, regarding the support clams, in terms of Austudy payment6. The divorce fee would
be reduced in this case also because the client and the spouse have no source of income and their
child is dependent upon them.
Under the Australian law, the Family Law Act, 19757 created the principle of no-fault divorce.
When the court grants the divorce, it does not take into consideration the reasons for the end of
marriage. They only consider the ground for divorce as being the breakdown of marriage and
there are no reasonable chances of the parties getting back together. The jurisdiction or the power
of dealing with the dissolution of marriage has been given to the Federal Circuit Court of
Australia through the Part VI of Family Law Act, 19758. In the granting of divorce, the financial
4 Federal Circuit Court of Australia, How do I apply for a Divorce? (16 March 2017)
<http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/how-do-i/divorce/apply-for-a-divorce/apply-for-
divorce>
5 At 1
6 Federal Circuit Court of Australia, Guidelines for reduced fee - divorce and decree of nullity application (16
March 2017) <http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/reports-and-publications/publications/
fees/guidelines-for-reduced-fee-divorce-and-decree-of-nullity-application>
7 Family Law Act, 1975 (Cth)
8 Family Law Act 1975, pt VI
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support issues are not determined, or that of the arrangements for children or property
distribution. It only encompasses the end of marriage9.
In order to make the no-fault divorce application, it has to be shown before the court that the
marriage has been broken down irretrievably. Where there are any children under the age of 18,
the court would grant divorce only after they are satisfied that proper arrangements have been
made for the children. It is crucial to note that a divorce application can also be opposed in
certain cases. When the couple has been separated for over twelve months, there are very few
opportunities which allow for a divorce application to be opposed. The divorce can only be
opposed when the court does not have the jurisdiction or there have not been twelve months in
separation, as had been alleged in the application. An individual can also seek dismissal of
divorce application by setting out grounds in the response to divorce10.
When it comes to the divorce hearings, it is not required for the parties to attend the court
hearing where there are no children under the age of 18 years. Where the joint application for
divorce is filed, the couple is not required to attend court hearing even when there are children
below the age of eighteen. In such a case where sole application is made by the individual, and a
child is there who is below the age of eighteen, it is obligatory to attend the court hearing11. In
the present instance, the sole application for the divorce would be filed by the client as the
spouse does not agree with the divorce proceedings and wants to try marriage counselling first.
These would not be successful as the marriage has already crossed two years mark. As the
9 Federal Circuit Court of Australia, Divorce (08 June 2016)
<http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/family-law-matters/divorce-and-separation/
divorce/divorce>
10 Ibid
11 Ibid
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divorce application is filed only by the client, instead of being a joint application, it would be
obligatory for the parties to attend the divorce hearing.
As highlighted earlier, the grant of divorce does not cover the matters regarding property and
maintenance, or the parenting arrangements for the children. Where the individual wants to make
arrangement on these matters, they can make such arrangement with the spouse and file the same
in the court, or they can seek an order from court where they are not able to reach an
arrangement. Where an individual wants to apply for maintenance of self or for the property
division, there is a need to file separation application within a period of twelve months from the
date off divorce becoming final. Conversely, this can be done with the permission of court to
apply12.
The basic step by step requirement for divorce process is reiterated here. The first requirement is
for an application for divorce to be electronically filed. There is a need to affirm or swear the
application for divorce before the Justice of peace, lawyer, or any other individual authorized to
witness the affidavits in the state or territory. There is a need to make two photocopies of
application for divorce, which is completed and signed and comes with the supporting
documents and its photocopies. There is also a need to attach the copy of marriage certificate.
There is also a need for these documents to be accompanied by the application for reduction in
the filing fee, coupled with the details of the Austudy payments13. When all such documents are
filed, the court gives a file number to the applicant and it also covers the date and time for
hearing. In cases of sole application, the court keeps the original divorce application, and gives
the applicant two copies of sealed application, along with information brochure ‘Marriage,
Families and Separation’. Where a sole application for divorce is made, a sealed copy of divorce
12 Ibid
13 At 1
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application has to be served to the spouse along with the information brochure, a minimum of 28
days before hearing date where the spouse lives in Australia. There is also the obligation of
attending the court hearing in cases of children below 18 years. Upon the success of divorce
application, a divorce order is granted by the court. It becomes final one month and one day after
it is made, save for such cases where the period is shortened by the court order14.
In order to proceed with the divorce of the client and her husband, certain questions have to be
answered by the client. The first one relates to the marriage certificate. Since the client does not
have a marriage certificate, there is a need to attain clarity on the process adopted by the client in
getting such marriage certificate. This requires the information on the attempts made by the
client in contacting the relevant authority in Sicily, Italy to get the marriage certificate. Any kind
of evidence which the client has, and which can be presented in the court, as a proof of evidence,
has to be attained from the client. In order to fill the affidavit, there is a need to attain the
schedule and history of shared activities and family outings from the client, along with the
decline in performance of household duties of each other. It is crucial for the client to have intent
of changing her living situation. And information regarding the same has to be clearly attained
from the client.
The next key point here is the finance plans for self and for the child. It is important for the client
to clarify on the plan they have to manage their finances. The client is already on Austudy
payments and the spouse is unemployed. The manner in which the client would look after the
needs of her and her child has to be understood. As none of two, i.e. the husband and the wife,
can leave the house, what kind of living arrangements does the client want. There is also the
14 Federal Circuit Court of Australia, Application for Divorce Kit (2018)
<http://www.federalcircuitcourt.gov.au/wps/wcm/connect/d9c6e4be-3288-4fc5-9080-e0ffb759beee/
Divorce_Kit_0313_V2.pdf?MOD=AJPERES&CONVERT_TO=url&CACHEID=d9c6e4be-3288-4fc5-9080-
e0ffb759beee>
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matter of custody of the child. Does she want to share the custody of the child with the father, or
does she want sole custody of the child? Even though these matters are not decided in the
divorce proceedings, it is crucial that such questions are clarified at this stage only. This is
because when the parenting orders are sought out in the future, such divorce applications can be
used as supporting or opposing evidence.
It is worth noting that the overall case of the client is very strong. Even if the spouse of the client
files the response to divorce, the chances of the spouse being able to stop this divorce are slim.
This is particularly due to the fact that the couple had been married for over two years, and that
two had been separated which was known to the family and friends. Again, the application has
been checked for errors of fact, so no application has to be made for this reason. However, where
the client attempts to seek maintenance allowance for the child and herself after the divorce, the
chances of her getting the same are slim. This is due to the financial position of the spouse, along
with his lack of English fluency, required for doing jobs in the nation. Despite the lack of
marriage certificate with the client, the supporting evidence presented by the client that would be
covered in the appendix with the divorce application is enough to establish that the two had been
married. There is ample proof to establish that the client and her spouse had separated and the
same has been detailed in the appendix to the divorce application. For her future perspective, she
can seek support for her child through the different venues. The case is again strengthened here
for the client as she has also drafted a proper arrangement for her child in the future, which is
detailed in the appendix to the divorce application.
Thus, this process has to be followed and the aforementioned details have to be fulfilled in order
for the client to be able to apply for getting a divorce. This letter of advice is also accompanied
by the divorce application which has to be filed as sole applicant by the client, along with the
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affidavit which would have to be filed with this divorce application. These have been added as
annexure to this letter of advice. This affidavit covers some of the information which is assumed
to have been provided by the client, based on the questions sought out in this letter.
Yours sincerely
(Your Name)
Paralegal
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Annexure 1: Affidavit
1. I, Chloe James, am the Applicant Mother in these proceedings and make this affidavit in
support of my application.
2. I was born on 7 October 1990. I am 27 years of age. I was born in Melbourne, an
Australian resident.
3. I am I good health and am a TAFE student/ housewife, and also get Austudy payments.
4. I had been married with the Respondent Father, Dimi Romano, since 01st February 2015.
5. Dimi Romano is also 27 years of age and was born in Sicily, an Italian resident.
6. Dimi Romano is also in good health but is presently unemployed. Dimi Romano is not
able to read English and requires Italian interpreter for assisting with the execution of
affidavit.
7. We were both 25 at the time we got married. The marriage took place in Sicily, Italy.
8. The marriage certificate is not available. Attempts were made to contact the relevant
authority in Sicily, Italy to get the marriage certificate, but the same could not happen.
This affidavit affirms that Chloe James and Dimi Romano had been married on 01
February 2015 and they are still married. None of the two had been married previously.
Before getting married the Chloe James was not living with Dimi Romano.
9. This affidavit has copies of the photos of the marriage of Chloe James and Dimi Romano.
There are also sworn testimony of three friends of Chloe James and two family members
of Dimi Romano, who affirm that they were present at the wedding of two.
10. There is one child of the relationship, Eva Romano James born 7 March 2016.
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11. Eva Romano lives with both the parents in their matrimonial home. This is a one
bedroom apartment located in Essendon. The care of child is with both the parents, which
includes purchasing, clothing, food and cooking meals.
12. There is no health issue regarding Eva Romano and the child is in good health.
13. The spouse is against this divorce and hence a single application for divorce has been
filed.
14. The reason for filing divorce is the financial difficulty being faced by the client. The two
have constant fights. A peculiarity in this matter is that none of the parties can leave the
family apartment owing to the low income, which they shared as married couple.
15. Even though the couple live under the same roof, their marriage has changed. This
affidavit affirms this changed relationship.
16. Even though the couple life under the same roof in the family apartment, the husband
sleep on couch.
17. There is sharing of bathroom and kitchen and also have a joint bank account. However,
the wife does want to proceed with a property division.
18. The couple does engage in communication but simply regarding finances and care of the
child.
19. To affirm the changed relationship, the testimony of Tiffany can be used. Tiffany Lee is
friend of the wife, who knows that the wife and husband have separated. The wife often
visits Tiffany’s place to get some space away from her husband. Tiffany has ended all
sorts of communication with her friend’s husband and no longer goes to her friend’s
apartment.
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20. The husband and the wife continued to live in the same house even after separation due to
the financial crunch faced by the couple. None of the two are financially independent to
afford separate housing.
21. The wife proposes to sell out the marital apartment and the proceeds to be divided in
three portions. Out of the three portions, two portions of the proceeds should go to the
wife, so that she can arrange for a home for herself and her child. This is because the
client wants the child to stay with her, where the husband gets visiting rights. This is
particularly important as the father is not fluent in English. To help the child in his
growing years, it is important for the child to stay with her mother.
22. Also, the father has no source of earning and so to support the child the wife needs the
money, which can be attained through sale of the shared matrimonial apartment. The wife
still gets the payments from Austudy, which can be used to support the child, till the time
the matrimonial apartment is sold off. This affidavit is attached with the payment receipts
from Austudy, made to the client.
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