Applying for a Divorce in Australia: Everything You Need to Know
Divorce in Australia
Divorce is the legal ending of a marriage. It can be a stressful and emotionally challenging event. If you are contemplating divorce, it can be helpful to de-mystify the process by examining some basic facts. This article aims to help with that de-mystification.
Can I get divorced?
Requirement 1: Connection to Australia
The first requirement to get a divorce is that you are within the jurisdiction of the Federal Circuit Court and Family Court of Australia. You can satisfy this requirement if you were born in Australia or hold a grant of Australian citizenship. 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 certificate from a family counsellor showing that you have explored the possibility of reconciliation. You must seek the court’s permission for not attending counselling. In special circumstances, such as when there are allegations of domestic violence, an applicant can receive an exemption from this 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.
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 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 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.
Applying for a 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 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.
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 online using a credit card (Mastercard, or Visa, including visa debit).
You can apply for a divorce together with your spouse (a ‘joint application’), or one person may apply (a ‘sole application’). 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.
💲 How much does it cost to get a divorce in Australia?
The fee for a divorce in 2021 is $940.00.
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 2021 is $310. 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.
❔ How can I get a quick divorce in Australia?
In Australia, there is no such thing as a fast divorce.
👨⚖️ 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. To make decisions about finances and children you can agree a parenting plan, binding financial agreement or consent 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 to help you in the process of seeking a divorce. Of course, if you don’t want to go it alone, we are here to help. For more information and assistance tailored to your needs, please call our team of solicitors on 1300 667 461.