Who can apply?
You can apply for a Divorce by yourself (known as a sole application) or together with your spouse (known as a joint application). If you file a sole application, you must serve the application on your spouse. You can serve the divorce documents on your spouse by post if you believe they will sign and return them, or by hand by arranging a family member, friend, or professional process server to serve the documents.
In order to be able to make an application for divorce, you or your spouse must:
- regard Australia as your home and intend to live in Australia indefinitely; or
- are an Australian citizen by birth, descent or by grant of Australian citizenship; or
- ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
When can I apply?
You and your spouse must be separated for at least 12 months before you are able to apply for a divorce. If you and your spouse have been separated for at least 12 months but have remained living in the same house, you will need to prove to the Court that you were separated during the time that you were still living together. This is usually done by way of an Affidavit.
If you have been married for less than two years, you will also need to file a counselling certificate to show that you have attended marriage counselling prior to applying for divorce.
What do I need to apply?
When you file the Application for Divorce, you must provide the Court with a copy of your Marriage Certificate. If you are unable to locate or obtain a copy of your Marriage Certificate, you will be required to file an Affidavit explaining why you are unable to provide it. The Court will however only consider an Application for Divorce without a Marriage Certificate in very exceptional circumstances.
How do I apply?
You can either retain a solicitor to prepare and file the Application for Divorce on your behalf, or you can complete the Application online yourself through the Commonwealth Courts Portal.
What will it cost?
Our Family Law Team are experienced in the preparation of Applications for Divorce. We have a fixed professional fee of $1,000.00 plus GST plus disbursements. The disbursements include the Federal Circuit and Family Court of Australia filing fee, which is currently $990.00. If you hold certain government concession cards or are experiencing financial hardship, you may be entitled to a reduced filing fee.
Once the Application for Divorce has been filed, the hearing details will be provided to you. Divorce hearings are currently conducted electronically which means you do not need to attend Court in person. Attendance is usually only required if you make a sole application and there is a child or children of the marriage that are under the age of 18 years or the respondent in a sole application files a Response to divorce opposing the application.
If all the requirements for a divorce are met, your divorce should be granted at the divorce hearing. If the divorce is not granted, the Court will explain the reasons why the divorce was not granted. If the divorce is granted, it will be finalised one month and one day later. You will receive the Divorce Order, which is proof of the divorce, the day after it is finalised.
Does Divorce affect my property settlement?
Once the Divorce Order takes effect (which is one month and one day after the Divorce Order is made), the parties have 12 months from that date to commence property settlement proceedings in the Federal Circuit and Family Court of Australia.
– Grace Slater