Going through a separation or divorce can be a difficult and stressful time. It's important to ensure that you have made attempts to reconcile with your husband or wife before filing for a divorce and that proper arrangements have been made for the care of any minor children of the marriage. If considering a divorce, the Court encourages you both to read the brochure Marriage, Divorce and Separation.
In Australia, divorce is 'no-fault,' which means you can both choose to move on without proving that one party caused the marriage to break down. However, there are some requirements that should be met. To be eligible to apply for a Divorce in Australia you must:
- Be separated for at least 1 year (you can be separated but ‘living under the same roof’);
- Be married for more than 2 years (or further requirements apply);
- Be an Australian citizen;
- Regard Australia as your home and intend to live in Australia indefinitely; OR
- Ordinarily live in Australia and have done so for 12 months immediately before filing for Divorce.
Our quick and easy Divorce application will step you through these eligibility requirements.
There are 2 different ways to apply for a divorce. Either by a:
- Sole application - if you are applying by yourself; or
- Joint application - if you are applying together with your spouse.
You can prepare your own application without a Lawyer and save thousands in legal fees using the online divorce application or download the divorce kit to complete yourself.
If you have been married less than 2 years, you will need to show the Court that you have attempted to reconcile with your spouse, including attending marriage counselling.
You will need to produce a Marriage Counselling Certificate with your application for divorce. The counselling must:
- Consider the prospect of reconciliation; and
- Have been provided by a counsellor from an approved marriage counselling organisation.
There are exceptions to the married for less than 2 years rule. The requirement can be dismissed in "special circumstances," such as when:
- A spouse’s whereabouts are unknown;
- Either one or both of you reside in an area that makes getting counselling difficult;
- There has been a history of domestic violence and/or there is a domestic violence order existing between the parties;
- You have had unsuccessful marriage counselling before;
- When it’s clear that more counselling will not help (e.g. where one or both of you have re-partnered); or
- There has been significant litigation in relation to children or financial disputes during the 12-month period after separation.
You must be separated from your spouse for at least 12 months before applying for a divorce. You may still be considered separated whilst 'living under the same roof.'
If you are still living under the same roof as your spouse, you will need to provide an Affidavit to the Court that explains why you are still living together. These could be for financial reasons or for the sake of minor children.
The Affidavit will need to set out things like:
- When you think the date of separation was;
- When you communicated your intention to separate from your spouse (either by words or conduct);
- Why you still live in the same house;
- The contrast in the relationship before and after the separation. You can make this contrast by referring to things like:
- Sleeping arrangements;
- Financial arrangements;
- Performance of household tasks including cooking, washing, cleaning, ironing and the like;
- Whether you socialise together with family or friends
- Any intention of the person applying to change the current living arrangements; and
- Whether family and friends have been informed that a separation has occurred.
Download a blank Family Law Affidavit form to complete your Affidavit of separation under one roof. Our Divorce kit includes example wording to help you complete your Affidavit.
Step 1. Complete the divorce forms
Complete the Application for divorce. Obtain a copy of your Marriage Certificate.
Step 2. Sign the application
Sign the application in the presence of a Justice of the Peace (JP), Lawyer or a qualified witness in your state or territory. If you are making a sole application, only the party making the application signs the application. If you are making a joint application, both parties must sign.
Step 3. Photocopy
You need to make 2 copies of the signed divorce application and supporting documents (the Certificate of Marriage) for the Court. It's also a good idea to make 2 extra copies to keep for each of the parties.
Step 4. Submit to the Court
The next step is to file the application, which means submit, with the Court. This can be done by post or in person at the nearest Federal Circuit Court registry. See 'Where to file' at the back of the application form for a list of offices.
Step 5. Pay the fee
You must also pay a Court fee for divorce ($865 as at July 2016). You can apply to have this fee reduced to $290 if you are applying on your own and you suffer from financial hardship. Check the Guidelines on the eligibility for a reduction.
Step 6. Receive hearing date and documents
The Court will give you a file number and a hearing date.
- Joint application – the Court will keep your original Application for Divorce and give you and your spouse a sealed copy of the application and an information brochure ‘Marriage, Families and Separation’. You should keep these documents.
- Sole application – the Court will keep your original Application for Divorce and give you two copies of the sealed application and information brochure ‘Marriage, Families and Separation’.
Step 7. Serve your spouse
If you applied on your own, you must then 'serve' your spouse with one of the sealed copies of the divorce application returned by the Court. This can be done by hand (via an agent) or by post. This must be completed:
- at least 28 days before the hearing date if your spouse is in Australia
- at least 42 days before the hearing date if your spouse is overseas.
What to do if you cannot locate your spouse
If you can't locate your spouse, you can apply for 'substituted service' or to dispense with the requirement to serve your spouse. You must first make all efforts to find your spouse. This may include social media or other online searches, or you may want to hire someone to look into it. See the Fact sheet - Trouble serving divorce for more information.
See the Divorce Service kit for further instructions about service (included with the divorce kit and online divorce).
Step 8. Attend the hearing
- If there is no child of the marriage currently under 18, you are not required to attend the hearing. This applies for both sole and joint applications.
- If you make a joint application and there is a child of the marriage currently under 18, neither you nor your spouse are required to attend the hearing.
- If you make a sole application and there is a child of the marriage currently under 18, you must attend the hearing.
In certain circumstances you can apply to the Court in writing to appear by telephone.
If there are children under the age of 18 years and you are making a sole application, you will be required to attend the hearing to address any questions the Court may have regarding the care and welfare of your children.
GOING TO COURT
When your matter is called, the presiding Registrar will consider all documents filed by both parties and will then proceed by either:
- Granting the Divorce; or
- Giving directions to provide evidence to satisfy the Court that all procedural requirements have been met.
If the Court proceeds to grant the Divorce, the Court must:
- Be satisfied that the marriage is proved (certificate of marriage requirement);
- That the Court has the power to hear the matter (the Australian connection requirement);
- Be satisfied that there has been an irretrievable breakdown of marriage (12 months of separation requirement);
- Be satisfied that service has been effected; and
- Make a declaration regarding the care and welfare of any children of the marriage, which can be THAT:
- There are no children of the marriage under 18 years of age; or
- There are children under the age of 18 years (who must be specified) and the Court is satisfied that proper arrangements for the children have been made; or
- There are children under the age of 18 years and there are circumstances by reason of which the Divorce order should be made even though the Court is not satisfied that proper arrangements have been made.
CONTESTED DIVORCE APPLICATIONS
If one person asserts that you have not been separated for a period of 12 months, then this is referred to as a 'contested application.'
In contested applications, the Court will usually make directions that further evidence (such as an Affidavit) be filed in relation to the separation. The matter will then be transferred to a judge of the Federal Circuit Court (or, in Western Australia, a judge of the Family Court of Western Australia) for a defended hearing on another day. The Registrar does not have the power to hear a defended application for divorce.
Once the divorce is granted, it becomes final 1 month and 1 day after the divorce hearing. A copy of your certificate of divorce will be sent to both parties.
Once your divorce is final, you are free to remarry at any time.
This article contains information of a general nature only and is not specific to your circumstances. This is not legal advice and should not be relied upon without independent legal or financial advice.