Applying for a Divorce in Australia: Everything You Need to Know

Posted on January 5, 2024 by Donna Nguyen - Family Lawyer

Team member Donna Nguyen.

Donna Nguyen - Family Lawyer

Author
Donna is a family law solicitor admitted in the Supreme Court of New South Wales with a double degree in Business and Law. Donna is drawn to family law as she is interested in helping clients during a difficult and transitional period following separation. She strives to achieve the best outcome for her clients and has their best interest at the forefront of her advice.

Key Takeaways:

  • To apply for divorce, one must meet certain criteria like a connection to Australia, belief in the irretrievable breakdown of marriage, a 12-month separation period, and the production of a marriage certificate.
  • The applying for a divorce process offers two application paths: a sole application where one party initiates the divorce and a joint application where both parties agree to end the marriage, each with specific procedures and requirements.
  • The divorce application process typically takes about four months from filing to final order, with necessary documentation and a mandatory one-month waiting period after the divorce hearing.
  • Divorce is separate from settlements on children and property, and while the application is relatively straightforward, resolving all matters from the relationship breakdown can be challenging, necessitating legal consultation and support.
  • Legal support can make a world of difference when you’re in the process of separation and divorce, and our family lawyers can help you no matter where you are in Australia.

Divorce in Australia

Divorce is the legal ending of a marriage and a process often navigated with the guidance of seasoned divorce lawyers.

This challenging journey not only marks the end of a relationship but also involves critical decisions regarding asset distribution and child-rearing responsibilities.

These matters can often create confusion for people who are contemplating divorce and while many find the procedural aspects of divorce daunting, it’s important to recognise that the application process itself is comparatively more straightforward.

In this article, our expert divorce lawyers aim to demystify these steps, offering clarity on the path to legally ending a marriage.

Interestingly, while the divorce process is relatively simple, over the past five years or so, the divorce rate in Australia has remained relatively stable, which could indicate that people entering into a marriage have an understanding of the commitment involved.

For those seeking further information on dividing assets, settling properties, or managing post-divorce parenting, we provide additional resources and consultations.

Read on to understand how to embark on the divorce application process amidst a landscape of steady divorce rates.

If you do not meet this requirement, then you can still apply for a divorce if you can establish that you have been (lawfully) present in Australia for at least the prior 12 months, and you regard Australia as your permanent home.

If you were born in Australia or are a citizen by descent, then you can divorce in Australia even if you are currently living overseas. However, you will need an address in Australia to receive “service” of documents from the Court. You can use your spouse’s address in Australia as your address for service, but you will need to write an affidavit explaining why you have given the address of your spouse when you are separated.

Requirement 2: The Marriage is Over

The second requirement for a divorce in Australia is that at least one spouse believes there is no reasonable likelihood of reconciliation.

You are not required to prove that you have attempted reconciliation. However, if you have been married for under two years, then you do need to produce a counselling certificate from a family counsellor showing that you have attended counselling and have explored the possibility of reconciliation. You must seek the court’s permission to not be required to attend counselling. In special circumstances, such as when there are allegations of domestic violence, an applicant can receive an exemption from this requirement.

The proof of the marriage being irretrievably broken down is usually based on a separation period of at least 12 months, which is the next divorce requirement.

Requirement 3: Separation for at least a Year

The third requirement to obtaining a divorce is that you must have been separated from your spouse for at least 12 months and 1 day. This separation period is to provide both parties the chance to see if the relationship can be reconciled. It’s also possible for couples to remain legally married but separated, even after the separation period has been achieved.

Requirement 4: Produce marriage certificate

The final requirement is that you produce a marriage certificate. It is important that the names that you list on your application for a divorce are exactly the same as the names that are on your marriage certificate.

If you were married overseas and your marriage certificate is not in English, then you will need to obtain an English translation. You will then need to attach both the original and the translated document to an Affidavit of Translation of Marriage Certificate. The National Accreditation Authority for Translators and Interpreters Ltd (NAATI) has a directory of NAATI accredited and recognised practitioners who offer translating and interpreting services.

If you do not have a copy of your marriage certificate and you were married in Australia, you can apply to Births, Deaths and Marriages in the state or territory where you were married for a replacement copy.

If you were married outside Australia, you will need to contact the relevant authority in the place where you were married to obtain a copy of your marriage certificate if you do not have one. If you are unable to obtain a copy of your marriage certificate, then you can write an affidavit that explains to the Court why you cannot provide the document. This is a more complex process, and you should try to access legal advice to ensure that you explain clearly to the Court why you cannot fulfil this requirement.

Divorce Application

In Australia, initiating the divorce process signifies the legal conclusion of a marriage and requires a thoughtful, structured approach.

Applicants must navigate a series of steps, including choosing between a sole application, where one party initiates the divorce, or a joint application, where both parties mutually agree to end the marriage.

Each pathway involves specific requirements, from meeting eligibility criteria like a minimum separation period to making arrangements for any children involved.

Additionally, the process typically includes filing an application with the Federal Circuit and Family Court of Australia and, for sole applications, serving the divorce papers to the other party.

Understanding these options and procedures is crucial for those seeking to navigate their divorce with clarity and confidence, ensuring a foundation that addresses the unique aspects of their situation.

Types of divorce applications

As we touched on above, there are two types of divorce applications that can be made in Australia, we’ve outlined some key details and differences of these applications below:

Sole divorce application

  • One spouse (the applicant) files for divorce without the other.
  • The applicant is responsible for serving the divorce papers to the other spouse (the respondent), providing legal notice of the divorce proceedings.
  • If there are children under 18, the applicant might need to attend a court hearing.
  • Ideal for situations where one spouse is driving the divorce or the other is unresponsive or uncooperative.
  • Potentially more complex if the other party disputes or does not cooperate.
  • May require court attendance, especially if there are children involved.

 

Joint divorce application

  • Both spouses agree to file for divorce together, signing and submitting the application jointly.
  • No need to serve documents since both parties are jointly filing and are aware of the proceedings.
  • Generally, no court attendance is required, even if there are children under 18, as long as the court is satisfied with the arrangements.
  • Ideal for couples who have mutually agreed to divorce and are willing to cooperate throughout the process.
  • Simplified process with less potential for conflict.
  • No court attendance required in most cases.

How long does a divorce application take?

Typically, a divorce application in Australia takes approximately four months from the date of filing to the final divorce order. This period allows for a mandatory one-month waiting period after the divorce hearing, considering any delays or required additional information.

The actual process of applying online doesn’t take long, however, you need to ensure you have all of the required documents on hand, which if you need to apply for copies of these documents, could increase the amount of time your divorce application takes.

What do you need for a divorce application?

To apply for a divorce in Australia you will need the following:

  • a completed application form;
  • a copy of the marriage certificate;
  • identification;
  • proof of citizenship or legal residency;
  • if children are involved, details regarding their care and support must also be provided; and
  • evidence of a 12-month separation.

 

To ensure you have the right information and your divorce application is submitted with all necessary documents, you can get in touch with one of our family lawyers here.

Where can I get a divorce application form?

Divorce application forms can be obtained from the Federal Circuit and Family Court of Australia’s website. They are available for download and can be submitted online via the Commonwealth Courts Portal or in person at a court registry.

Detailed instructions and checklists accompany the forms to assist in the process.

How to apply for divorce

Step 1: Filing the application for divorce form

The Federal Circuit and Family Court of Australia has the jurisdiction (that is, the power) to dissolve a marriage by granting a divorce order under Part VI of the Family Law Act 1975 (Cth). You can prepare and lodge a divorce application yourself or you can ask a solicitor to do it for you.

Can I file my divorce application online?

To file your application you will need to register in the Commonwealth Courts Portal. This will allow you to create a court file, upload documents and receive the final Court order. To file yourself you will need to have access to equipment such as a printer, scanner and the ability to pay the filing fee online using a credit card (Mastercard, or Visa, including visa debit).

You can apply for a divorce in a sole or joint application. If you apply with your spouse, this is a joint application and if you apply by yourself this is a sole application and you will be required to serve divorce papers to your spouse. There’s no right or wrong answer when it comes to which option you should choose when applying for divorce.

Whether you will need to attend court will depend on whether it is a joint or sole application, and whether you have children under the age of 18.

Step 2: Swearing or affirming the application for divorce

Once you’ve completed the Application for Divorce form, you’ll need to swear or affirm the form in the presence of a lawyer or another person who is able to witness your signature in your state or territory. You should check your state or territory legislation before choosing a person to witness your signature.

Step 3: Serving the application for divorce

Unless you file jointly, you will also need to serve the application on the other party. This is not a document that you can just post to the other person – it needs to be personally served. If you’re unable to locate your spouse, you may be able to apply to the Court to be able to serve them in another way.

 

💲How much does it cost to get a divorce in Australia?

The fee for applying for a divorce in 2024 is $1060.00.

The price is the same whether you are filing a sole application or making the application with your spouse, but if you file jointly then you and your spouse could agree to each pay half of the fee.

You may be entitled to a fee reduction based on low income. The reduced fee in 2024 is $350. For a sole application, you need to document your low income to the Court, but for a joint application both parties need to demonstrate low income.

The easiest way to establish financial hardship is to provide a copy of a Concession Card. If you do not have a concession card, you may still qualify for a reduced fee if your income is below certain thresholds.

 

🕤 How long does it take to get a divorce in Australia?

In order to apply for divorce, partners must be separated for a period of at least 12 months and 1 day.  If there is a period of reconciliation for three months or more, the clock on the 12-month separation restarts.

If the court grants the divorce at your hearing date, it will be finalised one month and one day later, unless the Court makes an order to shorten the time because of extraordinary circumstances. You can access the divorce order through the Commonwealth Courts Portal the day after your decree is issued.

So, the time it takes to get divorced includes the separation period of 12 months, the time it takes for you to submit your application, the time it takes for the application to get processed (typically 3-4 months after submitted), and then the one month and one day for the finalisation of the divorce application

 

❔ How can I get a quick divorce in Australia?

In Australia, there is no such thing as a fast divorce. Being granted a divorce order usually takes a few months after you’ve submitted the application but depending on your situation, it could take longer or less time.

 

👨‍⚖️ Do I have to attend the divorce hearing?

The good news is that if you file a joint Application for Divorce neither you nor your spouse is required to attend Court.

When you file a sole Application, you are required to attend Court if you are relying on substituted service or dispensation of service, or if you have children under 18 (this includes a step-child or foster-child who was considered a part of the family). In addition, if your spouse opposes the divorce being heard in the absence of the parties you will be required to attend.

Divorce hearings are conducted electronically. If you are required to attend but you cannot attend on the date set down by the Court, you can write to the Registrar to seek an adjournment of the hearing.

 

📝 How to get a divorce if my ex-spouse won’t sign?

In Australia divorce is always ‘no fault’. The only legal basis for divorce is that there are irreconcilable differences between the parties and no prospect of reconciliation.

People sometimes worry that they need to get their spouses’ agreement to divorce. You do not need your spouse’s agreement or cooperation to divorce. It is sufficient for you to confirm that you do not wish to continue with the marriage. A spouse may wish to oppose the divorce because they believe that there is hope or reconciliation, they still love you or it is against their religion to divorce. These are not sufficient grounds for the Court to force you to remain in a marriage once you have made the decision that you wish to divorce.

 

❓ What if we get back together for a short time?

The requirement for a separation of 12 months does not necessarily require a continuous year of separation.

The Family Law Act 1975 sets out the rules for when a period of separation begins and ends. Under this legislation, you can lodge an application for divorce when you have had periods of separation from your spouse that total at least 12 months as long as no period of reconciliation is longer than 3 months.

 

🏡 Living separately ‘under the one roof

Although you must be separated for one year and one day to apply for a divorce, this does not mean that you must have moved out of the family home. The Court recognises that sometimes there are practical and financial reasons that you continue to live under the same roof as your spouse even after final separation.

In this case, you must provide additional information through an affidavit, which you swear or affirm to be the truth in front of a witness. You will need to tell the Court when you separated, the total separation period, and explain why you continued to remain living under the same roof as your spouse after your separation. You can show that you were genuinely separated by describing:

  • Changed sleeping arrangements;
  • Reduced participation in couple activities, including sexual activity;
  • Separated finances.

It will help to support your application if you are able to also ask a friend or a family member, or someone else who knew that you were separated during that period, to also write an affidavit.

 

🧒 Children and property

It is important to emphasise that obtaining a divorce is independent of any agreements in relation to property settlement or care of children.

You do not need to make a formal agreement in relation to children or property division, but if your agreement is informal between yourself and your spouse the Court cannot enforce it. So, if either party reneges on your agreement, there is little the Court can do to legally enforce your agreement. To make decisions about finances and children you can agree a parenting planbinding financial agreement or consent orders. Or if you’re unable to come to an agreement together, you can attend family mediation which may help to come to an agreement or you can apply to the court for parenting and property orders.

Can you get a divorce without the other person knowing?

There is no way to obtain a divorce without your spouse being informed. After you file an Application for Divorce, you need to serve a copy of the sealed Divorce Application on your spouse.

However, it is possible to seek a divorce if your spouse cannot be located. If you do not know the whereabouts of your spouse, you can apply to the Court for what is called “substituted service”. This is when you serve the Divorce Application on a third party who should be able to get the Application to your spouse (for instance, your spouse’s parents may receive service).

If there is no third party who can receive service, then you may need to apply to the Court for “dispensation of service”. This is only possible if you can show the Court that you have genuinely made attempts to locate your spouse or a third party who was in contact with your spouse.

To apply for either substituted or dispensation of service, you need to complete an “Application in a Case” and also write an affidavit to give the Court information about what you do know about your spouse’s location (eg their last known address and when you last spoke to them), information about your spouse (such as employment, property, business interests of your spouse) and everything that you did in an attempt to locate your spouse.

Unified Lawyers can help

This guide provides basic information for the process of applying for a divorce in Australia. A divorce application itself is relatively easy, but resolving all matters that result from the breakdown of a relationship can be extremely challenging and that’s what we can help you with.

Our family lawyers Australia are experienced and extremely knowledgeable about all kinds of family law matters, including divorce and the matters that arise from it. Talk to us today to see how we can help you.

Get in touch by calling us on 1300 667 461 or booking a free consultation online now using the button.

Team member Donna Nguyen.

Donna Nguyen - Family Lawyer

Author
Donna is a family law solicitor admitted in the Supreme Court of New South Wales with a double degree in Business and Law. Donna is drawn to family law as she is interested in helping clients during a difficult and transitional period following separation. She strives to achieve the best outcome for her clients and has their best interest at the forefront of her advice.

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