Applying For Divorce In Australia
What is Divorce?
Divorce is 'legal severance' of marriage. That means, once the Divorce Order takes effect, your marriage (which is the subject of the Divorce Order) is no more. Divorce becomes final at the expiration of 1 month from the making of the divorce order (i.e., one month and one day).
Who Can Apply For Divorce in Australia?
A person who is 'validly married' to another person can apply for divorce. (If a person's marriage is not recognised as 'valid', they can apply to the court for a decree of annulment of marriage. A marriage may not be valid, for example, where it was the result of coercion or fraud, etc.)
Few Important Points To Note Regarding Divorce
You do not need to prove faults on your spouse's part to get divorce. You only need to show the court that your marriage has 'irretrievably broken down'.
Your spouse does not need to agree to the separation. However, you must have told your spouse that you consider the relationship is over.
You must be separated for at least 12 months before applying for Divorce.
Will You Need To Attend Court For Divorce Application
If there are children under 18, you will have to attend the court
If you are the sole divorce applicant and there are no children under 18, you are not required to attend the court
If you have made a joint divorce application, you and your spouse are not required to attend the court.
Applying For Divorce In Australia
Generally, applying for divorce is not a very complicated process for most married couples. You can apply to the Federal Circuit and Family Court of Australia (FCFCOA) for a divorce order by yourself (as a 'sole applicant') or together with your spouse ('joint application') if your spouse is willing to cooperate. An Application for Divorce can be made online through Commonwealth Courts Portal.
If you apply for a divorce as a sole applicant, then you must 'serve' a copy of your application with supporting documents to the other party. However, you must NOT serve them by yourself. You may seek the assistance of an adult friend, colleague, neighbour, or process server (if you are willing to pay their fees). Please read the 'How Do I Serve A Divorce Application' guide for more information.
Married For Less Than Two Years?
If you have been married for less than two years, you will be required to show the court that you have made genuine efforts to resolve your differences with your spouse and made attempts to salvage your marriage through, for example, mediation and other dispute resolution methods. You can satisfy this requirement by filing to the court a Counselling Certificate.
*The period of two years is calculated from the date of your marriage to the date of your application for a divorce.
You can obtain a Counseling Certificate after you have attended a counseling session, for example, with an authorised marriage/relationships counselor. In addition, you can contact Relationships Australia or Family Relationships Advice Line to seek more information about counselling and to arrange counselling session(s).
Overseas Marriages and Divorce In Australia
You can apply for a divorce order even if your marriage was solemnized overseas if either your spouse or you:
- are an Australian citizen
- are a permanent resident of Australia and intend to live permanently in Australia
- have lived in Australia for 12 months immediately before applying for a divorce order.
You must provide a marriage certificate in order to prove your marriage. If your marriage certificate is not in English, then you must provide the court with an official translation of your marriage certificate along with the original. You will also need to provide an affidavit from the translator.
Living Under The Same Roof After Separation?
If you believe that your marriage has irretrievably broken down, but you are still living together or have lived together within 12 months period before applying for divorce, then you will have to prove to the court that you were genuinely separated even though you were living together under the same roof. This situation is also referred to as 'separation under one roof'.
Proving separation under one roof may not be straightforward in every case. If that applies to you, you must consider seeking professional legal advice and assistance.
Other Things To Consider When Applying For Divorce In Australia
It is always advisable that an applicant for divorce must seek professional legal advice before applying for a divorce. It is because there may be many other potential issues that may be relevant and/or their effect may not be obvious to an applicant. For instance, legal advice is highly recommended where:
there are under 18 children
disputes may arise regarding property and financial issues at a later stage
there is a Will in place, etc.
Have Under 18 Children Of Marriage?
Where there are under 18 children of the marriage, the court will not make a Divorce Order until it is satisfied that proper arrangements for the 'care, welfare, and development' of children have been made.
Worried About Your Safety When Attending The Court?
Speak to the relevant court staff before your hearing date and discuss your concerns regarding your safety and security. Courts can make arrangements to ensure your safety.
Need to Learn More About Divorce in Australia?
The Federal Circuit And Family Court of Australia provides very helpful detailed information, checklists, and a Divorce Kit regarding applying for divorce on its website.
Warning! No information provided on this website in relation to Australian laws, policies, procedures, directions (or any other matter) is intended to be legal advice. You must seek legal advice on issues specific to your situation and circumstances. Please read our Terms and Conditions.