The Divorce Process in Australia: A Comprehensive Legal Guide

Navigating the divorce application process in Australia can be daunting, but understanding the legal requirements and steps can help reduce stress. Familiarising with the steps involved ensures that, not only does one comply with the law, but also manages expectations during this challenging time.

By Vanessa Caputo, Principal Lawyer at Thornton + King

Estimated reading time: 6 minutes

Introduction

Introduction

Navigating the process of a divorce is a complex and emotional journey. This comprehensive guide aims to simplify the legal proceedings and provide a clear pathway through the intricacies. Understanding the steps involved in filing for divorce under the Family Law Act 1975 ensures that not only does one comply with the law but also manages expectations during this challenging time.

Going through a divorce in Australia operates under the principle of no-fault, meaning the court does not require parties to prove fault or blame in the breakdown of the marriage. Rather, the primary requirement is to demonstrate irretrievable marriage breakdown. This is established when the court is satisfied that parties have separated for a continuous period of more than 12 months before filing for divorce.

Eligibility to Apply for Divorce

Whether you are applying for a divorce yourself or jointly with your spouse, there are requirements needed to be fulfilled to be eligible for divorce.

1. Proof of Separation

The core requirement for a divorce is proving that the marriage has irretrievably broken down. This is demonstrated by showing a continuous period of separation for over 12 months. This separation means living separate lives, although it is not uncommon for couples to live under the same roof, especially in recent times throughout the COVID-19 pandemic.

In cases like Morris v Morris 1992 ALR 893 the court acknowledged that couples could be considered separated despite living under the same roof if they could demonstrate evidence that they clearly lead separate lives and qualities of a common life are gone. In this case, the husband and wife lived under the same roof yet they have not lived together as husband and wife since the date of separation.

If you and your partner are separated while living under the same roof, it is important to have evidence which the court can deem as an acceptable proof of separation.

2. Time Since Marriage

You cannot file for a divorce in Australia if you have been married for less than two years unless you attend a counselling session and obtain a certificate from a family counsellor stating you have considered a reconciliation. This certificate is required to proceed with a divorce application earlier than the two-year mark.

3. Residency Requirements

At least one partner must satisfy the following requirements:

Consider Australia their permanent home and plan to live their indefinitely;
Be an Australian citizen by birth, descent, or grant of citizenship;
Ordinarily live in Australia and have done so for 12 months immediately before filing the divorce application.

Preparing and Filing the Divorce Application

Step 1: Apply

To start the divorce application, you can electronically submit an Application for Divorce via the Commonwealth Courts Portal. Alternatively, if you aren’t too tech savvy, you (or your lawyer if you have one) can fill out a paper form available at Federal Circuit Court and submit it by post or at your nearest family law registry.

Step 2: Sign

If you are making a joint application you and your partner must swear or affirm the Application for Divorce before a lawyer, Justice of Peace, or other authorised person to witness affidavits. An affidavit is a written statement that supports your application by providing the court with details, under oath, about your marital situation.

If you are making a sole application then only you will need to swear or affirm the Application for Divorce.

Step 3: Filing

Filing your application can be done electronically through the Commonwealth Courts Portal. It is important to include:

The signed and witnessed Application for Divorce in step 2;
Supporting documents; and
Your marriage certificate.

It is important to note there is a filing fee. You may be eligible for a reduced fee if you hold certain government concession cards or can demonstrate financial hardship. Visit the following page at Federal Circuit and Family Court for more information on fees.

Step 4: Receiving a Hearing Date and Documents

After successfully filing, the Court will assign you a file number and set a date and time for your hearing. A hearing is a formal proceeding in Court where a judge reviews the divorce application and supporting documents to decide whether to grant the divorce.

Step 5: Serving Documents

Serving documents depends on the type of application.

Joint Application: Both you and your spouse keep a sealed copy of the Application for Divorce.
Sole Application: You are required to serve a sealed copy on your spouse, giving them at least 28 days’ notice before the hearing if they are in Australia, or 42 days’ if they are overseas. Service is a requirement to allow the other party to be notified of the pending divorce application involving them. You will need to arrange for certain documents to be served on your spouse by post or by hand. Visit the following website for further information on how to serve a divorce.
In a joint application you must also serve your spouse the “Marriage, families and separation’ brochure with the court documents.

Step 6: Attending the Hearing

If there is no child of the marriage under 18, you are not required to attend the hearing at all. If there is a child of the marriage currently under 18 and you are making a joint application, you or your spouse are also not required to attend the hearing. However, if it is a sole application with kids of the marriage involved, you are required to attend the hearing.

8. Finalising the Divorce

If your hearing goes well, the Court will grant your divorce order. The order becomes final one month and one day following the hearing unless the Court informs otherwise. You will receive a copy of the order either by post or through the Commonwealth Court Portal.

Time-frame Overview

Separation Period: Minimum of 12 months continuous separation
Counselling certificate (if applicable): Required if married for less than 2 years.
Application Process: Filing the application and receiving a scheduled hearing can take a few weeks or months.
Service Period: Documents must be served at least 28 days before the hearing (42 days if overseas)
Hearing and Finalisation: The hearing date will be set, and if all goes well, the divorce will be finalised one month and one day after the hearing.

Conclusion

Navigating the divorce application process in Australia can be daunting, but understanding the legal requirements and steps can help reduce stress. Seeking legal advice is crucial to ensure all aspects of the process are handled correctly and so you feel supported during this challenging time.

Author: Vanessa Caputo

Vanessa is a results driven lawyer who excels at cutting through the legal jargon and helping clients to achieve their objectives. Her wealth of commercial experience allows her to give clear practical guidance to her clients to help them get their deal across the line.