Choosing to end a marriage is an incredibly difficult decision and one that can cause a large amount of emotional strain. This is especially true if you have children or joint assets. However, here we will only discuss the process of applying for a divorce order, which is different to applying to the court for a property settlement or for a parenting matter.
In this post, we’ll discuss who is eligible to get a divorce in Australia, what is involved in the divorce application process and how to file for a divorce.
Who can apply for a divorce?
When you apply for a divorce, the court does not determine who was at ‘fault’ for the breakdown of the marriage and/or whether both parties want/wanted the separation or divorce.
In order to apply for divorce, you must meet several criteria:
- You (or the other party) must either:
- Regard Australia as your home and intend to live here indefinitely;
- Be an Australian citizen by birth, descent or grant of citizenship;
- Have lived in Australia for the 12 months immediately before making you’re application for divorce;
- You must intend to end the marriage and believe that there is no reasonable likelihood that you will get back together; and
- You must have been separated for at least 12 months and one day (or longer) before you make the application.
If you have been living together during this time, known as ‘separation under the one roof’, you will need to file an Affidavit evidencing that there has been a change in the marriage.
Parties who separate but then get back together can still apply for a divorce within 12 months of their initial separation, provided the period in which they reconciled was not longer than 3 months.
You must also be able to provide a copy of your marriage certificate when you make an application for divorce. If you do not have a copy of your marriage certificate, you will need to file an affidavit setting out the details of the marriage and reasons why you are unable to provide a certificate. If your marriage certificate is from another country, it may need to be translated.
If you meet all of these criteria, then you are able to apply for divorce. If you’re unsure about whether you meet the criteria, then you should seek legal guidance about getting a divorce.
How to get a divorce in Australia
Under Part VI of the Family Law Act, the Federal Circuit Court of Australia has the power or jurisdiction to deal with divorce, which is also known as the ‘dissolution of marriage’.
When applying to the court, you can either prepare and file your own application or you can ask your lawyer to do it for you.
The divorce process is relatively straightforward provided certain facts contained within the application are not contested by the other party, but using an experienced family lawyer can help you to understand the timelines and procedural nature of the application.
Plus, a family lawyer can also help you deal with any contested facts or issues and represent you at court should an appearance be required (for example if you are the sole applicant in a divorce application where there are children under the age of 18).
Providing that you meet the relevant criteria for filing for divorce in Australia, you can either file a sole or a joint application.
If you file a sole divorce application, you will be known as the applicant and the other party will be known as the respondent.
The divorce application will only require your signature, but it must be served on your ex-partner.
If there are children under the age of 18 involved, then your (and/or your solicitor’s) attendance at court is required.
If there are no children under the age of 18, you will not have to attend the divorce hearing.
As part of your divorce application, you will be asked for the address of your ex-partner, so the divorce papers can be served on them so that they are aware that the application is being made.
If your spouse currently lives in Australia, then you’ll need to ensure that the documents are served at least 28 days before any scheduled court hearing. If your spouse is overseas, then you’ll need to serve the documents at least 42 days before the court hearing.
If you do not know the current address of your partner, the court expects you to take all reasonable steps to locate them and bring the application/proceedings to their attention.
If you’re still unable to locate your partner after making these efforts, you are able to put their address as ‘unknown’ on the divorce application. However, your lawyer will need to assist you in making an application to the Court seeking an order for dispensation of service or for substituted service.
Dispensation of service means that you do not need to serve court documents because the court deems that you’ve made all reasonable efforts and have been unsuccessful.
Alternatively, substituted service allows you to serve documents on a third party if the court is satisfied that they will be brought to the attention of your spouse.
To apply to the court for substituted service or dispensation of service, you need to complete an application and an affidavit.
For a joint divorce application, the parties filing for divorce are known as joint applicants. This means that both parties must sign the divorce application.
Whether you have children under the age of 18 or not, your attendance at court is not required for the divorce to be finalised under a joint application.
Additionally, neither party will need to serve documents on the other.
Instead, one party completes the application and provides a copy to the other party to review, sign and be filed with the Court.
If you have been married for under two years and you’re filing for divorce, you will need to file a counselling certificate with your application.
In addition, if one party now uses a different name to their married or maiden name, then that party will also need to file an Affidavit to explain the difference in names while filing for divorce in Australia.
Filing for divorce
An application for divorce can be filed via the Commonwealth Courts Portal or by filling out the appropriate paperwork and filing it at the Court Registry.
When the application is filed, you will need to pay a $940 divorce application fee.
However, this divorce application fee may be reduced to $305 if you can prove financial hardship or if you are in receipt of a health rate card. For a joint application, both parties must prove that they are experiencing financial hardship or both must be in receipt of a health rate card. If only one party is eligible, the full fee applies.
If you’re eligible for a reduced fee, then you’ll need to provide evidence that you qualify. For example, if you hold a health care card, you will need to provide a photocopy of both sides of your card.
Finalising a divorce
Once the divorce process has concluded and your divorce is finalised, a divorce order will be available to download on the Commonwealth Courts Portal. Once your divorce has been granted, it will be finalised one month and one day later, unless a special order has been made by the court to shorten this timeframe.
Please be aware that the divorce order has an electronic seal and signature. It is an original order and it is the only official record the court issues.
One of the most critical things to remember after getting a divorce is that applications for property settlement and/or spousal maintenance are required to be filed within 12 months of the date the divorce order became final.
If you fail to bring an application within the timeframe, then you lose your right to bring an application and it will be necessary for you to seek leave (permission) from the court to proceed with a property settlement and/or spousal maintenance application out of time. This is an expensive procedure and there is no guarantee that the court will grant the leave.
I listen to clients to get to the root of their concerns so we can implement tailored solutions to achieve resolution as soon as possible.