Overview
Divorce is a process individuals undertake to legally end a marriage. In Australia there are certain steps individuals need to be aware of and take in order for a divorce to be granted. The Federal Circuit and Family Court of Australia is the primary judicial body that deals with divorce and follows what is set out in Part VI of the Family Law Act 1975 for their decision making.
It is important to note that Australia has a ‘no fault divorce’ system. This indicates that courts do not consider the reason/s the marriage came to an end. Neither spouse has to prove that one or the other did something or contributed to the turmoil of the marriage.
In terms of issues of dispute relating to financial support, property distribution and arrangements for children, these will need to be filed in a separate application. Granting a divorce does not determine these issues.
When can I apply for a divorce?
There are certain requirements you need to meet for a divorce application to commence and be granted.
The requirements:
- You are legally married (through marriage certificate or other documentation)
- You have been separated for a period of at least 12 months (it is possible to live together but still be separated – known as separated but living under one roof)
- Your marriage has broken down and there is no possible likelihood that you will get back together
- You or your partner are an Australian citizen or a permanent resident or have been living in Australia for 12 months.
Other requirements if married overseas:
- Marriage certificate, if not in English, must be translated
- Affidavit translation of marriage certificate from a certified translator.
Other requirements if there are children under 18 in your care:
- Must satisfy the court that proper care and arrangements have been made for the children
- Disclose information to the court regarding who they live/spent time with, form of communication with you and your ex partner, their education, financial support and health/wellbeing.
How do I apply for a divorce?
The process
1. Complete an online divorce application
Applications for divorce must be filed to the Federal Circuit Court of Australia via the Commonwealth Courts online portal.
An application can be filed as a:
- Joint (if you and your ex-partner are in mutual agreement)
- Sole (on your own)
All documentation uploaded with the application must be signed by a solicitor or justice of peace.
The cost of filing a divorce application is $1060 (as of 2024). However, reduced fees may apply depending on circumstances.
Once filed a date and time for a court hearing will be given.
2. Serve documents
- Application for divorce
- Other sealed documents such as Affidavit
- The Acknowledgement of Service (signed by ex-partner to prove files have been served) and the Marriage, Families and Separation Brochure (available online at fcfcoa.gov.au/fl/pubs/marriage-families-separation)
- 28 days before your court hearing or,
- 42 days if your ex-partner resides overseas.
3. Court hearing
Court attendance is not always required.
Court attendance is required when:
- You have filed a sole application
- A child under the age of 18 is involved at the time of filing
- You or your ex-partner have objected to the idea of conducting a hearing in their absence
- Ex-partner opposes the application and files a response.
4. Court decision made on divorce
If the court is satisfied that all requirements are met for a termination of marriage, divorce will be granted.
An adjournment or refusal may occur if the court is not satisfied that proper arrangements and steps were taken in the divorce process between you, your ex-partner and children involved.
Please note: the divorce does not take effect until one month and one day after your divorce hearing. The status of your divorce can be viewed via the portal.
How can we help?
We understand that the divorce process can get complicated and seem overwhelming.
We are here to help and make you aware of the resources available to you during this process.
Contact us today to receive the best legal care during each step of the process.
Disclaimer: This is commentary published by Olympus Law Partners Pty Ltd is for general information purposes only. This should not be relied on as specific legal advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal. The content also is subject to change.
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