Divorce
Can I apply for Divorce?
The steps to obtain a Divorce in Australia are as follows:
(1) Separation
Separation occur when at least one partner decides to separate, tells the other person and then acts on that decision. Often it is not one defining moment, but a good indication is when one partner communicates to the other partner that the relationship has ended on a final basis. The other partner doesn’t have to agree. There is no requirement that one person leaves the shared home because people can remain living separated and under the one roof.
(2) Lodge a Divorce Application
After you have been separated for 12 months, you can lodge a Divorce Application with the Court, either a Sole Application for Divorce (by yourself) or a Joint Application for Divorce (jointly with your former partner). or by yourself.
Your Divorce Application should be lodged electronically on the Commonwealth Courts Portal. The Court Portal is where you can access and manage all the documents for your Divorce Application. There is no legal requirement to have a lawyer prepare of lodge your Divorce Application.
You must make sure you have all the necessary supporting documents to lodge with the Court, which may include the following:
A copy of your marriage certificate: a scanned copy of good quality photo is acceptable. If your marriage certificate is not in English, then you must have it translated by a Certified Translator, and attach copies of the original and the translated version to an Affidavit of Translation of Marriage Certificate completed by the translator.
Proof of jurisdiction: If you or the other party were not born in Australia, you must provide a copy of at least one form of proof of jurisdiction prior to the court date for either yourself or the other party. For example, an Australian citizenship certificate, an Australian passport or other proof of citizenship, a VEVO status check or other official visa documents (not expired and has been valid of at least 12 months), a green Medicare Card, a Health Care Card, or copies of bank statements. If there is a discrepancy between the name on application and on the supporting documents, then you must provide an Affidavit to explain the discrepancy.
Once you have a signed and witnessed Divorce Application and all necessary supporting documents, you should login to the ComCourts Portal, upload all the documents and pay the Court filing fee. If you are not able to file your Divorce Application electronically, then contact the Court via email, or visit the Court Registry in person. Once your Divorce Application is lodged, you are allocated the first available hearing date, and you must download the sealed Divorce Application - the copy stamped by the Court.
(3) Serve the Divorce Application
If you lodged a Joint Divorce Application, then you do not need to serve it. If you lodged a Sole Divorce Application, then you must serve your sealed Divorce Application, supporting documents and Court Brochure Marriages, Families and Separation, at least 28 days before the Court hearing. If your spouse lives overseas, then you must serve them at least 42 days before the Court hearing.
You cannot simply email the documents to your former partner. If your former partner will agree to sign an Acknowledgement of Service (Divorce) then you can post the documents to your former partner. Once you receive the Acknowledgement signed by your former partner, you must file with the Court an Affidavit of Service by Post (Divorce).
If your former partner will not agree to return it, then you must arrange service by hand, which means the documents are delivered to your former partner personally by any person, except you, and often a professional process server is used. If your former partner signs the Acknowledgement, then person who served the documents must complete an Affidavit of Service by Hand (Divorce) and lodge it with the Court. You should also complete an Affidavit Proving Signature (Divorce) and lodge it with the Court.
The Court has a step-by-step guide on how to serve your Divorce Application. You can access the Court's Divorce Service Kit here.
(4) Divorce Hearing
Upon lodging your Divorce Application with the Court, you are allocated the first available date for your Court hearing, often within 6 to 8 weeks. The Court hearing is conducted by telephone, not in person. Generally, you do not need to attend the divorce hearing if you filed a Joint Divorce Application, or if you filed a Sole Divorce Application and there are no children under 18 years of age. Attendance at the Court hearing is usually only mandatory if you make a Sole Divorce Application and there is a child or children under 18 years of age, if your former partner lodged a Response to Divorce opposing the divorce, or if you specifically requested to attend.
At the Court hearing, the Registrar who conducts the hearing will review your application and confirm that all the necessary requirements have been met. If so, then the Court will make a Divorce Order. The Court will ask if there has been any change to the care arrangements for any children since the Divorce Application was lodged.
(5) Divorce Order becomes final
Your divorce order will become final one month and one day after the date of the hearing. This is like a 'cooling off' period. You will receive a notification from the Court that the Divorce Order is avaiable to download from the Court Portal.
The requirements for divorce in Australia are as follows:
(1) You have separated on a final basis.
(2) You have lived separately and apart for the last 12 months.
(3) There are proper arrangements for the care of any children.
The Court does not consider why the marriage ended.
You can get a Divorce if you separated but have continued to live in the same home during the last 12 months. You will need to prepare two Affidavits for the Court - one from you and another from a friend or family member.
In your Affidavit, you need to prove that there has been a change in the marriage, gradual or sudden, showing you and your spouse have separated. You will need to explain:
Change in sleeping arrangements.
Reduction in shared activities or family outings.
Decline in performing household duties for each other.
Division of finances; for example, separate bank accounts.
Any other matters that show the marriage has broken down; for example, if you have notified family and friends of your separation.
Why you continued to live in the same home following separation and what intention, if any, you have of changing the situation.
Living arrangements you made for any child of the marriage under 18 years during the time you were living under one roof.
What government departments you have advised of your separation if you receive a government benefit; for example, Centrelink or Services Australia (Child Support). If correspondence has been received from these departments about your separation, attach a copy to your affidavit.
You must make all reasonable attempts to serve your former partner. After that, you can apply to the Court for an Order for substituted service, for example that you be allowed the serve the Divorce Application by email, or alternatively that the requirement of service to be dispensed with.
You must file an Application in a Case and a supporting Affidavit. The Court will likely hold a second hearing to review the application.
What are the requirements for Divorce in Australia?
What documents do I need to get a Divorce?
Separated and living under one roof?
The total costs to get Divorced in Australia are as follows:
(1) Lawyer fixed fee from $595.
(2) Court Filing Fee $1,125.
(3) Process Server from $150 (if required).
The Court Filing Fee is reduced to $375 if you have a Concession Card, such as a Pensioner Card or Health Care Card, or you are experiencing financial hardship.
I cannot serve my Divorce Application
How much does Divorce cost in Australia?
How to apply for Divorce in Australia?
You will need the following documents to get a Divorce in Australia:
A copy of your marriage certificate: a scanned copy of good quality photo is acceptable. If your marriage certificate is not in English, then you must have it translated by a Certified Translator, and attach copies of the original and the translated version to an Affidavit of Translation of Marriage Certificate completed by the translator.
Proof of jurisdiction: If you or the other party were not born in Australia, you must provide a copy of at least one form of proof of jurisdiction prior to the court date for either yourself or the other party. For example, an Australian citizenship certificate, an Australian passport or other proof of citizenship, a VEVO status check or other official visa documents (not expired and has been valid of at least 12 months), a green Medicare Card, a Health Care Card, or copies of bank statements. If there is a discrepancy between the name on application and on the supporting documents, then you must provide an Affidavit to explain the discrepancy.
You can apply for a divorce if either you or your spouse meets one of the following criteria:
(1) Regards Australia as their home and intends to live in Australia indefinitely; or
(2) Is an Australian citizen by birth, descent or by grant of Australian citizenship; or
(3) Ordinarily lives in Australia and has done so for 12 months immediately before lodging the Application.
Divorce Application from $595
