It’s no secret that getting a divorce can be a difficult decision to make, and the process is daunting if you’re not sure where to even begin. It’s important to know the steps and have the right supports around you while you navigate this big moment in your life.
Separation vs Divorce
Getting divorced is not the same as being separated from your spouse, just because you have separated does not mean you are divorced.
Separation occurs when either partner in a relationship decides that they do not want to be in that relationship anymore, communicates this to their partner, and acts on that decision.
A divorce is the legal ending of your marriage. In Australia, you cannot remarry until you are divorced. A divorce also does not determine your parenting or property settlement, this is a separate process under the Family Law Act 1975.
You are not required to get divorced before sorting your parenting arrangements or property settlement; however, once divorced, you only have 12 months to make an Application for property settlement. If you wait longer than 12 months, you will need to get special permission from the Court (called ‘leave of the Court’) before you can apply.
Eligibility for Divorce
The Australian legal system has a concept called ‘no fault divorce’, meaning that it does not matter why you want to get divorced, whether either spouse was responsible or if you just decided to go your separate ways.
The only requirements to get a divorce in Australia are:
- You and your partner have been separated for 12 months and 1 day. You can still be living together for part or all of that time, however you will need to file a separate Affidavit with your divorce Application confirming your separation date.
- One or both spouses believe that the relationship has broken down irretrievably and that you will not get back together.
- One or both spouses is EITHER:
- An Australian Citizen (by birth, decent or grant of citizenship); OR
- Regards Australia as their indefinite home; OR
- Has lived in Australia consistently for the past 12 months.
- If you were married for less than 2 years, you and your spouse have attended counselling and obtained a counselling certificate (if you are unable or it is not safe to do this, you can file an Affidavit explaining why).
If you meet all of the above criteria, you can apply for a divorce, even if your spouse does not agree. If you were married overseas, you can still get a divorce in Australia so long as you are not already divorced overseas.
How to File for Divorce
A divorce can either be applied for in person at the Federal Circuit and Family Court Registry closest to you (with paper documents), or online through the Commonwealth Courts website (comcourts.gov.au). Nowadays, most Applications are made online, however if you’re unable to do this, the Court can assist you in person.
You can either apply for the divorce yourself (a sole application) or apply with your spouse (a joint application).
For the majority of divorces, the documents you will need to file are:
- Affidavit of e-Filing Application (Divorce). This document becomes available once you fill in the required information on the Commonwealth Courts Portal. This Affidavit must be signed by you and witnessed by either a lawyer or Justice of the Peace;
- A copy of your marriage certificate. If you were married overseas, you will need to have your marriage certificate translated and file an Affidavit of translation. The NATI website has a list of translators who are certified to do this;
- Proof of citizenship. This can be a birth certificate, passport or other citizenship certificate. If neither of you are an Australian Citizen, you will need to upload a document showing the date you or your spouse arrived in Australia.
There may be additional documents to file depending on your circumstances, including Affidavits, previous Court Orders and concession cards (if applying for a reduced filing fee).
If you have Children
If there are children of the marriage under 18, including step-children if they were considered a part of your family, you will need to include details in your Application about the children’s arrangements since separation. These details can include:
- Who the children live and spend time with;
- Where they go to school;
- Who financially provides for the children; and
- How the parents make arrangements for the children.
The Court will not grant your divorce if they are not confident that the children are taken care of. You do not need to have formal parenting arrangements in place, however as much detail as possible should be provided on your parenting arrangements.
I’ve Filed for Divorce, What Happens Now?
When you file your Application, you will usually be able to pick your Court Hearing date from a list of options. That is the date that a Deputy Registrar will look at your Application and decide whether to grant your divorce.
If you made a sole application, you will need to give a copy of your Application to your spouse at least 28 days before the Hearing (this is called serving the documents). If you filed a joint Application, you do not need to serve any documents.
You will need to print and serve each sealed document that you filed with the Court, and a copy of the Marriage, Families and Separation Brochure (which is available at this website https://www.fcfcoa.gov.au/fl/pubs/marriage-families-separation). The documents are sealed once they have the red Court stamp. If you do not serve the documents, the Court generally will not grant your divorce.
How do I Serve my Spouse?
You can either serve the documents by posting them to your spouse’s current address, delivering them by hand directly to your spouse, or sending them to your spouse’s lawyer.
By Hand
Anyone over the age of 18 can serve your documents, however you cannot serve the documents onto your spouse yourself. You can ask a family member or friend, otherwise you can hire a Process Server to serve the documents for you.
Whoever serves the documents must sign an Affidavit of Service by Hand which explains what documents were served, how they were served and how they identified your spouse. The server must ask your spouse to sign the Acknowledgement of Service. You must file both of these documents with the Court before your Hearing.
If the server does not know your spouse, you will need to complete and file an Affidavit Proving Signature, which confirms that you recognise the signature on the Acknowledgement of Service to be your spouses signature.
If your spouse did not sign the Acknowledgement of Service, the server will need to note this in their Affidavit and explain what happened. You will then not need to file the Affidavit Proving Signature.
By Post
If you serve the document by post, you will also need to send an Acknowledgement of Service for your spouse to sign and return. If your spouse does not return this, the Court may not grant your Divorce, so keep that in mind if you decide to post the documents.
You will then need to fill in and sign the Affidavit of Service by Post and attach the Acknowledgement of Service, then file both of these documents with the Court.
By Lawyer
If your spouse has a lawyer, you can send the documents to them by post or email, along with an Acknowledgement of Service. If they fill in the Acknowledgement, you can file this with the Court and not need to file other documents. If they do not fill in the Acknowledgement, or do not accept service, you will need to arrange to serve your spouse personally by hand or post.
What if I cannot Serve my Spouse?
You might not be able to find your spouse, or maybe they are avoiding service. If this is the case, you will need to apply to the Court and ask for an Order allowing you to serve your spouse in a different way, such as by email. This is called a substituted service Order.
In limited circumstances, the Court can entirely remove the need to serve your spouse. This is called a dispensation of service Order.
Both of these can be complicated, as the Court needs to know you have done everything you can to try finding your spouse. If this sounds like you, you may need to get some legal advice on how to make this Application.
Court Hearing
After all of that is done, you can finally have your Divorce Hearing.
You must attend your Hearing if:
- You made a sole application and there are children of the marriage under the age of 18;
- Your spouse has filed a response opposing the divorce;
- Either you or your spouse have stated that you do not want the Divorce granted in your absence.
You should attend your Hearing if:
- You are asking the Court to make either a substituted service or dispensation of service Order; or
- You may need to provide additional information to the Registrar, such as explain a name change or separation under one roof circumstance.
You do not need to attend your Hearing if:
- You made a joint application; and
- There is no other information you think the Court will need to know.
Divorce Hearings are held over the phone. The Court should send you the phone number and time to dial in, this is also available on the Commonwealth Courts Portal.
You may be in the same time slot as lots of other people, so you should set aside at least 1 hour for the Hearing.
Finalising your Divorce
If the Court grants your divorce, it will come into effect 1 month and 1 day after the Hearing (if your Hearing was on 8 September, the divorce is not in effect until 9 October).
Your Divorce Order will be available on the Commonwealth Courts Portal, or you can ask the Court to provide you with a copy.
How much does a Divorce cost?
The Court charges a filing fee for your Divorce Application. This fee is $1,100 as of 1 July 2024, however it may change annually. If you have a concession card, you may be eligible for a reduced fee. All updated fee information can be found at https://www.fcfcoa.gov.au/resources/fees.
There may be other fees associated with your divorce, including:
- Lawyer’s fees if you choose to have a lawyer;
- Translation fees if you need to have your marriage certificate translated; and
- Process Server fees if you hire someone to serve your documents.
There is no requirement for you to have a lawyer to file for divorce, however it is always a good idea to book an appointment with a lawyer if you have any questions about the process so they can provide information relevant to your specific circumstances.
We understand that getting a divorce can be an emotional and overwhelming time, but once it’s all done, you can finally take the first step into the next chapter of your journey.
This article is general information only and is not the same as receiving legal advice. If you would like more information tailored to your specific situation, you can give us a call at 9727 7000 to speak with one of our family lawyers.