Applying for a Divorce in NSW

How to apply for a divorce in NSW

Making a divorce application in NSW, or anywhere in Australia, is usually a straightforward process.

It’s often the associated issues that complicate a divorce, for example, spousal maintenance, parenting arrangements and property settlements.

If you’re thinking about divorce, our family & divorce lawyers in Sydney can help sort out all the family law issues surrounding your divorce.

We’ll also do all the paperwork for the divorce application. This can help reduce your stress during one of the most challenging times of your life.

Joint Divorce Application NSW

Who can make a divorce application?

One or both spouses can make a divorce application in NSW and Australia.

If you agree to divorce, you can make an application together. This is known as a joint application.

If your spouse doesn’t agree to the divorce application, or if you can’t find your spouse, you can make an application on your own. You don’t need their permission or consent. This is known as a sole application.

One of the biggest differences between joint and sole applications is the time involved. Because joint divorce papers are agreed, the court can usually process them more quickly, meaning the process is finalised sooner.

Sole applications may take longer because the court may want to hold more than one hearing to work out the best way to deal with the issue.

Or, if one spouse doesn’t want the divorce or objects to some of the allegations in the papers, there may be an additional hearing to get to the truth of the matter. Then the court can decide whether to grant the divorce.

It is important to remember that federal law applies across Australia.

Whether you live in New South Wales, Victoria, Canberra, or any other part of Australia, the family law system is the same. That’s because family laws, including divorce laws, are federal laws. This means they operate across Australia.

Why your home is relevant when applying for a divorce in NSW

When you make a divorce application, you (or your family lawyer) must give certain documents to the court.

The court that usually handles divorces is the Federal Circuit Court of Australia (FCC).

It has courtrooms and offices (registries) around Australia.

The registry in which you file your divorce documents is usually the place where any hearings will take place.

So it’s important that, if you’re initiating the divorce, you choose a registry that’s convenient for you.

If your spouse initiates the divorce or if one of you lives far away, the choice of registry may become an issue.

There are ways around this, for example, by holding hearings by video or telephone link, or by applying to have the application heard in a registry closer to your home.

If you’re concerned about the registry you choose, speak to us. We’ll try to make some arrangements that work for you.

Applying for Sole Divorce NSW

If you’ve made a sole application for divorce, the FCC will require you to make sure that your spouse gets a copy of the divorce papers. This is known as service.

Service of documents is an important part of court processes. It’s a way of ensuring that the other person (the respondent) has fair notice of the application and has an opportunity to respond.

A court will require proof of service.

Proof of service is evidence that shows that the document was served, or that attempts were made to serve it.

This evidence is usually in the form of an affidavit, a sworn document that a court considers to carry as much weight as witness testimony.

An affidavit is an important legal document. Everything declared in your affidavit must be true and accurate.

You can serve a document on your spouse by posting it or by having someone else (for example, a process server) serve it. You can then swear an affidavit providing details of how and when it was posted. Or a process server can swear an affidavit of service.

If you can’t find your spouse, you must make attempts to find out where they are, for example, by :

• Searching social media and other websites
• Searching the electoral roll
• Asking family and friends

You can swear an affidavit that details your attempts to get information about your spouse’s location and any attempts at service.

If you can’t find your spouse, you can apply to the court to dispense with service.

This means that the court won’t require service because you’ve done all that’s reasonable to try to serve the documents.

Or it may allow you to serve the documents on someone else (for example, a close relative of your spouse).

The FCC will require an affidavit of attempted service before it makes these orders.

Australian family law requires that divorce applications be served at least 28 days before the hearing if the spouse lives in Australia, and at least 42 days if the spouse lives overseas.

We can guide you through this process. To find out more, please see our valuable article resource on sole divorce application vs joint divorce application.

What happens at the divorce hearing?

On the day of the hearing, you go to the FCC at the time given to you by the court (as of the date the application was filed). If your spouse filed the papers, have a look at the front page to find the date, place, and time. If you can’t find it or are concerned you won’t be able to attend, contact us, and we’ll help you work out your options.

You may be able to attend by phone or video link, or we may be able to change the date. You only have to attend the divorce hearing if you and your spouse have children who are under 18 years old.

If you and your spouse have children under the age of 18, you need to be able to show that you’ve made special arrangements for their care and welfare. The FCC will require proof of this before it grants your divorce.

If you both agree to the divorce orders, and the FCC has all the documents it needs to make a decision, it may grant your application on that day.

That will be the final hearing, and then the FCC will issue the divorce order later, usually one month and one day after the hearing.

When you receive the divorce order, your divorce is finalised, and your marriage has ended.

If there is an issue at the hearing, for example:

• One spouse objects to the divorce application
• Your spouse can’t be found
• The FCC questions whether your spouse was properly served with all the documents
• There are children of the marriage, and you haven’t been able to show arrangements for their care and welfare
• There are problems with the divorce papers

The FCC will adjourn the hearing and reschedule it to a later date so that you can locate documents or do whatever the FCC requires. The FCC also has the power to refuse or dismiss a divorce application.

If you want your application dismissed, or are concerned that it may be, you’ll need legal assistance from us as soon as possible. Contact us to arrange a free first appointment.

What are the differences between courts in Australia regarding divorce applications?

For divorces in NSW (and throughout Australia), it’s the FCC that deals with divorce applications.

That’s because divorces are handled separately from the other issues that often also arise.

Issues concerning children and property are the most common.

The FCC may also hear other family law issues, for example, parenting orders, child support, spousal maintenance and property settlements.

The Family Court of Australia (FCA) can also hear these issues, but usually only when they’re complicated.

For example, cases concerning international child abduction, adoption, the validity of a marriage, or property issues involving significant assets or complex business structures.

If a case starts in the FCC, it may be referred to the FCA if it becomes more complicated than initially predicted.

Divorce Application Fee NSW

The fee for applying for a divorce from the Federal Circuit and Family Court of Australia is $1,100.

The price is the same whether you file a sole application or file jointly with your spouse, but if you file jointly, 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.

To learn more, check out our comprehensive guide on divorce cost in Australia.

Do I need a lawyer for divorce applications in Australia? Reasoning and Considerations

You may choose not to have a lawyer represent you in your divorce proceedings. But before you make a decision, there are a few important things to consider.

A court registry can help guide you through the process if you DIY divorce in NSW.

But it can’t give you any legal advice.If the lawyer needs to fix any issues in your application, it may end up costing you more time and money than it would have if you’d instructed a lawyer from the beginning.

Before you decide to represent yourself, you need to take a good look at the procedures, laws and requirements to make sure that you’ll be able to handle everything independently.

Another significant consideration is whether any other legal issues arise because of your divorce.

For example, this could include :

• Parenting arrangements
• Spousal maintenance
• Property division
• Dividing family business assets
• Dividing family superannuation
• Working out arrangements for pets
• Making a new will

If you’re going to be impacted by any of these issues, it’s best to seek out legal guidance.