Divorce Applications: How to Get a Divorce in Australia
The breakdown of a marriage can be a challenging, emotional time, and at Peter Andrews Lawyers we aim to make the process as smooth and easy for you as possible. Whether you’re ready to file for a divorce, or are wondering what your options are, the information below will give you an outline of your eligibility to file for a divorce, the information you need to provide to the court, and the divorce application process from start to finish. You can also find out more about our divorce services here.
The advice on this page applies to all couples, both heterosexual and same-sex, whose marriage is recognised under the Family Law Act 1975. If your de facto relationship has broken down, read our advice on your legal rights here. If you’re unsure if your marriage is recognised in Australia, contact us for an obligation-free consultation.
The divorce forms you are required to complete for your application are available via the Commonwealth Courts Portal. You can fill these in and submit them on your own, or with the assistance of an experienced lawyer. Seeking legal advice is important to ensure you complete the forms correctly and provide all of the information the court requires upfront, to avoid back and forth and added stress to what is likely an already difficult situation.
Filing a Divorce Application
To apply for a divorce you must submit your application via the Commonwealth Courts Portal You will need to register as a user, which will provide you with a username and login. This is the same portal used for all Family Court proceedings, so even if you have existing applications for parenting agreements or childcare consent orders, you will then need to create a new file within the portal to download and complete your divorce application.
You will also need access to a scanner, printer and credit card (Visa or Mastercard) to make payment.
Single or Joint Application For Divorce
Under Australian law, you can apply for a divorce either by yourself with a sole application, or with your former partner in a joint application. The same form is used in both circumstances, however, there are different obligations in both.
If you wish to file a sole application, you will be identified as the applicant, and your former partner as the respondent. In this case, only you as the applicant will be required to sign the Affidavit for filing the divorce papers, however, you will be required to serve documents on the other party (your spouse) as part of the application. For more information on this, read the Serving Divorce Papers section below.
If you file a joint application with your spouse, you will both be identified as the applicants, and therefore both are required to sign the Affidavit for the application. One party will complete the application, sign it, and send it to the other party to review and sign. As divorce applications are completed online in Australia, you will be able to sign and print the application after Step 1 to provide to the other party for review. Once you have completed the application and finalised it at the end of Step 4, you can print for both you and your spouse to sign the Affidavit, before eFiling the application online.
Eligibility to File For a Divorce
There are a number of criteria you and your spouse must adhere to before you can legally apply for a divorce in Australia. The criteria you will need to satisfy are as follows;
- You or your spouse must answer yes to at least one of the following about your right to live in Australia;
- Born in Australia, or have become an Australian citizen either by grant of citizenship or descent
- Are lawfully present in Australia, have been living in Australia for at least the last 12 months, and intend to continue living in Australia. A passport showing the date of arrival and a valid or current visa must be presented.
- The marriage has broken down and there is no reasonable likelihood that you will get back together
- You have been separated for 12 months and one day or longer
- You have your marriage certificate
Have you been married less than two years? See the section below ‘Can I apply for a Divorce?’
Serving of Divorce Papers
Serving divorce papers is the process of notifying the other party of the pending divorce application. The serving of documents can be done by mail, in person, or by serving the other party’s divorce lawyer. There are minimum time periods you must adhere to when serving documents to your spouse. If they are in Australia, the documents must be served to them at least 28 days prior to the court hearing. If they are not in Australia, the documents must be served to them at least 42 days prior to the court hearing.
If you are unable to locate your spouse, we will be able to assist you in how to proceed. The first step is applying to the court for an order for substituted service. This is when the court allows you to serve the documents to a third party, who the court is satisfied will be able to bring the documents to the attention of your spouse. This could be a friend or family member who is in contact with your spouse for example.
If you are unable to apply for substituted service, we can assist you in applying for an order for dispensation of service. This is only granted in exceptional circumstances, however.
If your spouse is in prison, or has a disability and you are unsure how to proceed, contact us and we can help.
Do You Need to Go to Court to Get Divorced?
There is only one instance in which you are legally required to present to the court for a divorce application, and that is when you have filed a sole application and there are children under the age of 18 involved.
There are, however, other instances in which you would be advised to attend, including if you are applying for substituted service or dispensation of service, or in the case that the court requires more information. More information may be required if you have separated but are residing in the same residence, or if you have been married for less than two years, for example.
Our experienced lawyers are able to help guide you and ensure you have all of the information submitted for smooth and quick divorce proceedings.
Can I Apply For a Divorce?
If you’re unsure whether or not you can apply for a divorce, and have answered yes to the questions in the Eligibility section above, you may need to consider the following.
Can I apply for a divorce if I’ve been married less than two years? The short answer is yes, however there are extra steps you must take before you’re eligible to submit your divorce application. If you wish to apply for a divorce and you’ve been married less than two years, you are required under Australian law to attend a counselling appointment with a marriage counsellor to discuss the possibility of reconciliation. The counsellor must complete a certificate stating that they have discussed the possibility of reconciliation with you, and you are then required to attach the certificate with your divorce application.
If you do not attend a counselling appointment, you must seek permission from the court to submit a divorce application. Some reasons you may not be able to attend a counselling appointment include the inability to locate your spouse, with an explanation of the attempts you have made to find them, or if your spouse refuses to attend counselling, and evidence of your attempts to invite them to attend. If you are unsure how to go about this, contact us, and our experienced lawyers can help with an obligation free consultation.
How Much Does a Divorce Cost?
To file a divorce application in Australia there is a fee of $930. You may, however, be eligible for a reduced fee of $310. You may be eligible for the reduced fee if:
- You hold any Department of Human Services or Department of Veterans Affairs cards, including a seniors card, a pensioner concession card, or a health care card;
- You have been granted Legal Aid
- You are receiving Austudy, youth allowance of ABSTUDY;
- You are 18 or under, or are an inmate of a prison or otherwise legally detained
You may also apply for a reduction if the full fee will cause you financial hardship. We can assist you in completing this application and providing evidence.
Please note there are no fees involved in the serving of documents on the other party if this is required as part of your application process, however, legal fees may be required should you seek the advice of an experienced family lawyer.
How Are Assets Divided in a Divorce?
Filing for divorce under Australian law is simply the separation of the two people in the marriage. It does not finalise arrangements regarding the division of property or other financial assets, or parenting agreements. For detailed information on the steps taken to assess the asset pool, consider the contributions made by each party, and the division of assets, read our article on who gets what in divorce.
Our experienced lawyers can guide you through the processes of applying for the division of assets and property and financial settlement, as well as child support arrangements and parenting dispute resolution.
How Long Does a Divorce Take?
Once a divorce is officially granted, it will be finalised one month and one working day later. Under exceptional circumstances, the court may also be able to shorten this time. Once finalised, your divorce order will be available for you to download and print via the Commonwealth Courts Portal. It is important to remember that this document will have an electronic seal and signature, and will be the only official and original record for evidence of the divorce.
Can You Apply For a Divorce Online?
To apply for a divorce in Australia you must submit your application via the Commonwealth Courts Portal.
You are required to sign an Affidavit when submitting your divorce application. What is an Affidavit? An Affidavit is the legal written statement presenting the facts or evidence surrounding your divorce. It will need to explain why you and your spouse wish to file for a divorce, if you have not attended counselling, the reason for this, and if any special circumstances apply to your case, such as domestic violence or abuse, and concerns around your safety in attending a counselling session with your spouse.
While the process of submitting your documents is relatively straightforward, there are multiple, delicate parts to consider, which is why having an experienced lawyer on your side is important.