Marriage break-ups for most people are very stressful and confusing. You may be feeling anxious and out-of-control because you don’t understand the legal process and what it is that you have to do, where to start. This may even be the case if both you and your spouse are in agreement and the decision to divorce is amicable.
It does not have to be complicated. Here are some basic steps to getting divorced:
If you were married in Australia the Family or Federal Magistrate’s Court is able to grant a divorce.
If you were married overseas, you can apply for a divorce in Australia if either you or your spouse:
- regard Australia as your home and intend to live indefinitely in Australia are an Australian citizen or resident, or
- are an Australia citizen by birth or descent
- are an Australia citizen by grant of an Australia citizenship
- ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
You and your spouse must have lived separately and/or apart for at least 12 months with no reasonable likelihood of resuming married life. It is possible to live together in the same home and still be separated but you will require addition evidence for third parties to support this.
Complete an Application for Divorce and file it with either the Family Court or the Federal Court and pay the application fee. You may be eligible for a fee exemption or waiver. We can help you complete and lodge the Application Form and advise in which court to file. There are different application fees for each court.
You will need:
- a copy of your marriage certificate
- the date of separation
- the names and dates of births of any children and information relating to the health and welfare, education
- If you were not born in Australia you must also file a copy of your Australian citizenship certificate, Australian passport or other proof of citizenship.
The Application for Divorce must be witnessed by a solicitor or other person authorised to witness affidavits.
If you have made a sole application, you need to serve the divorce application on your spouse. If you have taken all reasonable steps to serve your divorce application on your spouse and you are unable to do so, you can apply to the Court for:
- substituted service, or
- dispensation of service.
We can help you if you are having trouble serving your divorce application.
Attend the hearing of the divorce application if necessary. You only need to attend the application if there are children of the marriage under the age of 18 years, however:
- if the application is a joint application regardless of whether there are children of the marriage aged under 18 years, you are not required to attend the court hearing.
- If it is a sole application and there is a child of the marriage aged under 18 years, you must attend the court hearing unless circumstances prevent you from attending.
- You can arrange for an agent to attend on your behalf who is well acquainted with your circumstances and can respond to any questions raised by the court in relation to your
The court order granting the divorce becomes final one month and one day after it is made. Once the divorce order becomes final, the Court will send a Certificate of Divorce to you and your spouse individually, or to your lawyer if you have one.
What a court considers in divorce applications
Australian divorce law is a “no-fault” system. That is, the court does not consider why the marriage ended. The only ground for divorce in Australia is that the marriage has broken down irretrievably.
What if we have been married less than two years?
If you have been married less than two years you must either:
- attend counselling with a family counsellor or nominated counsellor to discuss the possibility of reconciliation with your spouse; or
- if you have not attended counselling, seek permission of the Court to apply for a divorce.
The two years are calculated from the date of the marriage to the date of applying to the Court for a divorce.
What if there are children involed?
If there are children aged under 18,the court can only grant a divorce if it is satisfied that proper arrangements have been made for them.
What if the divorce application is opposed?
If you have been separated for more than 12 months, there are few opportunities to oppose a divorce application. The divorce can only be opposed if:
- there has not been 12 months separation as alleged in the application, or
- the court does not have jurisdiction.
What decisions are made for the children, property and maintenance?
Divorce applications do not decide issues about property and maintenance or parenting arrangements for your children. Arrangements about these issues can be made by agreement between you and your spouse or by the court if you cannot come to an agreement. For more information call us to discuss.
Do not let the process of getting divorce confuse you or cause you stress. Contact us to discuss and put your mind at ease.
Disclaimer: This fact sheet provides general information and does not provide legal advice. If you have a legal issue, you should contact a lawyer before making a decision about what to do or applying to a court.