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, we 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.
Do I have to satisfy any requirements before I file divorce papers?
Australian family law sets out a range of requirements that divorcing spouses must meet before being granted a divorce, including:
- Legal separation
- Citizenship or residency status
- Counselling certificate (in some cases)
For more information, see our divorce requirements page.
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 deal with them more quickly, meaning that the process is finalised sooner.
Sole applications may take longer, because the court may want to have more than one hearing to work out how best 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.
How to make a divorce application
To apply for a divorce, you’ll need to complete a divorce application form. Then, you’ll need to sign and date it in the presence of a qualified witness. We can help you with this process.
You’ll then need to file a copy of your marriage certificate and the application form (divorce papers). This is done in the Federal Circuit Court (FCC). The FCC will charge a filing fee. It’s usually around $1000, but in exceptional circumstances, you may be eligible to have it reduced.
The FCC will give you a time and date for the hearing. It’s at this hearing that the FCC will decide whether to:
- Grant the divorce; or
- Hold a further hearing to try and resolve any issues; or
- Dismiss the divorce application
Get in touch with us to find out more about making the divorce application. If there are other considerations, for example, children and division of property, you’ll need our legal advice to make sure that any court orders are in your best interests, and the best interests of your kids.
What happens next?
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 is considered by a court 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 getting someone else (for example, a process server) to 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 and 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 are 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. Contact us to find out more.
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 (when the application was filed). If your spouse filed the papers, have a look on the front page of the document to find the date, place and time. If you can’t find it, or you’re concerned that 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 an application dismissed, or are concerned that your application may be dismissed, you’ll need legal assistance from us as soon as possible. Contact us to arrange a free first appointment.
What happens when the divorce order is made?
The divorce order usually comes into effect one month and one day after the final hearing. When this happens, your marriage is dissolved, and you are free to marry again, provided that you meet all the requirements for legal marriage in Australia, including providing the divorce order as proof that you’re divorced.
Keep in mind that once the order is made, you only have 12 months to apply for property settlement and spousal maintenance. So if you haven’t already seen a lawyer, you’ll need to get in touch with us as soon as possible to get the ball rolling.
