How to Apply for Divorce in Australia: Step-by-Step Legal Guide
Applying for a divorce in Australia follows a straightforward legal process governed by the Family Law Act 1975 (Cth). The system operates on a no-fault divorce principle, meaning that the only requirement is proving that the marriage has irretrievably broken down with a minimum separation period of 12 months. Applicants can file jointly with their spouse or individually.
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Meeting the Legal Requirements
To apply for a divorce in Australia, specific legal criteria must be satisfied before filing an application with the Federal Circuit and Family Court of Australia:
- Residency or Citizenship Requirement – At least one party to the marriage must meet one of the following conditions:
- Be an Australian citizen by birth, descent, or grant of Australian citizenship.
- Hold permanent residency in Australia.
- Consider Australia as their home and intend to live there indefinitely.
- Separation Period – The couple must have been separated for at least 12 months with no reasonable likelihood of reconciliation. This period is used to demonstrate that the relationship has irretrievably broken down, which is the only ground for divorce under Australian law. In some cases, couples may be considered legally separated even if they continue living under the same roof, but they must provide additional evidence to support their claim.
- Additional Requirement for Short Marriages – If the marriage has lasted for less than two years, the law requires the couple to attend counselling and obtain a counselling certificate from a registered family counsellor. This certificate confirms that reconciliation was considered but was not possible. If attending counselling is not feasible, an exemption may be granted by the court under special circumstances, such as cases involving family violence or the inability to contact the other spouse.
These requirements ensure that all divorce applications meet the legal standards set out in the Family Law Act 1975 before a divorce is granted.
Summary Points:
- One or both spouses must meet residency or citizenship requirements.
- The marriage must have irretrievably broken down, proven by 12 months of separation.
- Short-term marriages may require counselling before applying.
Completing and Filing the Application
The Application for Divorce in Australia is submitted online through the Commonwealth Courts Portal, which provides access to case details, electronic filing, and court orders.
Key Requirements for Filing a Divorce Application:
- Completing the Application Form
- Applicants must fill out the online Application for Divorce form accurately, providing details about the marriage, separation date, and other relevant information.
- If the application is made jointly by both spouses, both must sign the form. If only one spouse applies (a sole application), they must arrange for the other party to be served with the documents.
- Providing Proof of Marriage and Separation
- A copy of the marriage certificate must be attached to the application. If the certificate is in a language other than English, a certified translation must be provided along with an affidavit from the translator.
- If the couple has been living separately under one roof, additional evidence may be required to prove separation.
- Court Filing Fee and Fee Reduction Eligibility
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- A court filing fee applies when lodging the application.
- Some applicants may be eligible for a fee reduction due to financial hardship, government concession eligibility (e.g., pensioners), or other qualifying circumstances.
Once the application is filed, the court will allocate a hearing date. If the divorce is uncontested and all legal requirements are met, the court may grant the divorce without requiring attendance at a hearing, unless there are children under 18, in which case attendance may be necessary.
Summary Points:
- Divorce applications are filed online via the Federal Circuit and Family Court.
- A marriage certificate and proof of separation are required.
- A fee applies, with potential reductions for eligible applicants.
Serving the Divorce Papers (For Sole Applications)
If applying for divorce as a sole applicant, the non-filing spouse (respondent) must be formally served with a copy of the divorce application and supporting documents. This ensures they are aware of the proceedings and have the opportunity to respond if necessary.
Service of Divorce Documents
- Methods of Service
- Personal Service: A third party (such as a professional process server or a trusted adult over 18) must hand-deliver the documents to the respondent. The applicant cannot serve the documents themselves.
- Service by Post or Electronic Means: If the respondent is willing to accept service, documents can be sent via registered post, email, or another electronic method, provided the applicant can prove receipt.
- Acknowledgment of Service
- The respondent must sign an Acknowledgment of Service form, confirming they have received the divorce application.
- If personal service is used, the server must also complete an Affidavit of Service, stating when and how the documents were delivered.
- What If the Spouse Cannot Be Located?
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- If the applicant is unable to locate the respondent despite reasonable efforts, they may apply for:
- Substituted Service: Requesting the court’s permission to serve the documents through an alternative method, such as via a family member, email, or social media.
- Dispensation of Service: Seeking an exemption from service requirements if it is impossible to contact the respondent after exhaustive attempts.
- If the applicant is unable to locate the respondent despite reasonable efforts, they may apply for:
Proper service is a critical step in the divorce process, and failure to comply with service rules may delay proceedings or require additional legal steps.
Summary Points:
- Sole applications require serving the other party with divorce documents.
- Proof of service must be provided to the court.
- If the spouse is unreachable, alternative service methods may be requested.
Attending the Hearing and Finalising the Divorce
Once the divorce application is processed, a court hearing may be required depending on the circumstances of the case.
Court Hearing Requirements
- When a Hearing is Not Required:
- If a joint application is filed and there are no children under 18, the court will generally process the application administratively, and neither party is required to attend.
- When a Hearing is Required:
- If a sole application is filed and there are children under 18, the applicant must attend the hearing to answer any questions the court may have regarding parenting arrangements.
- The court’s role is to ensure that proper arrangements are in place for the care, welfare, and development of the children, although a divorce does not determine parenting orders.
- Finalisation of the Divorce:
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- If the divorce is granted, it becomes final one month and one day after the hearing date.
- Once finalised, the court issues a Divorce Order, which serves as the official proof of divorce.
This timeline ensures that both parties have adequate time to address any remaining legal concerns before the divorce is legally concluded.
Summary Points:
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A court hearing may be required, especially if children under 18 are involved.
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Joint applications without children usually do not require attendance.
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The divorce is finalised one month and one day after approval.
Divorce and Separation Services:
- Divorce vs Separation in Australia: Understanding the Legal Differences
- How to Apply for Divorce in Australia: Step-by-Step Legal Guide
- Separation Under One Roof: What It Means and How It Affects Your Divorce
- Financial and Property Settlements After Divorce: What You Need to Know
- How Long Does Divorce Take in Australia?
Our Divorce and Separation Lawyers are here to help. Contact us for support.
How to Apply for Divorce: Key Considerations
Understanding the distinction between divorce and separation is essential, as each carries different legal and financial implications.
Parenting and Child Arrangements
Divorce does not settle parenting arrangements or child support obligations. Parents must make formal arrangements separately, either through a parenting plan or court orders if required.
Property and Financial Settlements
A divorce does not finalise property division or spousal maintenance. Parties have 12 months from the finalisation of the divorce to file for property settlements.
Wills and Estate Planning
A divorce affects a Will and Power of Attorney. If a former spouse is a beneficiary or executor, legal updates may be required to ensure assets are distributed as intended.
How to Apply for Divorce FAQs
Can I get divorced if my spouse does not agree?
Yes, you can still get divorced even if your spouse does not agree, as Australia operates under a no-fault divorce system. This means that the court does not consider who was responsible for the marriage breakdown, only whether the marriage has irretrievably broken down. A sole application for divorce can be made as long as the legal requirement of 12 months of separation has been met and properly evidenced.
What if we still live in the same house during separation?
You can still apply for divorce even if you and your spouse have continued living in the same home during the separation period. However, you will need to provide evidence demonstrating that you were separated despite living under the same roof, such as separate financial arrangements, no longer sharing a bedroom, and independent social lives. This can be supported through affidavits from friends, family members, or professionals who can attest to the genuine nature of the separation.
How long does a divorce take in Australia?
The process of obtaining a divorce in Australia typically takes around four to five months from the time of filing to the finalisation of the divorce order. This timeframe depends on various factors, including the availability of court dates, whether all documents are correctly submitted, and whether there are any delays in serving the application to the other party. Once granted, the divorce order becomes final one month and one day after the hearing.
Do I need a lawyer to apply for divorce?
You are not legally required to have a lawyer when applying for divorce, as the process can be completed online through the Federal Circuit and Family Court of Australia. However, seeking legal advice is highly recommended, especially in cases involving property division, child custody arrangements, or international legal considerations. A family lawyer can help ensure that your rights are protected and that all necessary legal requirements are met.
What happens if my spouse is overseas and cannot be served?
If your spouse is overseas and cannot be personally served with the divorce application, you can apply to the court for an order allowing substituted service or dispensing with service altogether. The court may approve alternative service methods, such as email, social media, or service through a family member or lawyer, depending on the circumstances. If all reasonable attempts to serve the spouse have failed, the court may grant an exemption, allowing the divorce to proceed without formal service.
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