In a perfect world, there would be no separation or divorce. As we all know, however, the world is far from perfect. So sadly, divorce is the reality for thousands of Australians. In fact, more than 49,000 Australians got divorced in 2018. For those faced with this reality, the emotions involved can — and often do — complicate separation and divorce. But the divorce process itself can be surprisingly straightforward. Keep reading to learn more.
Eligibility for divorce
For starters, there are certain requirements you must meet to apply for divorce. Applications for divorce will not be accepted and a Court cannot issue a Divorce Order unless it determines that you:
- Have been married for more than two (2) years.
- You both meet citizenship and residency requirements, meaning that you both consider Australia your home and plan on living here indefinitely; or are Australian citizens by birth, descent or by grant of Australian citizenship; or you usually live in Australia and have done so for 12 months immediately prior to filing for divorce.
- You and your spouse have lived separately and apart for no less than 12 months prior to applying for a divorce.
- There is no chance of reconciling the marriage.
Exceptions to eligibility requirements
Of course, there are always exceptions to the rules, and this is the case with eligibility for divorce.
For example, you can still submit an application for divorce if you were married for less than two years. To do so, however, you have to convince the Court of three things. These are that you and your spouse have considered reconciling; that you have tried marriage counselling; and that there is still not a chance of reconciling the marriage.
It may also be possible to apply for a divorce even if you lived together for a period of time after you separated. To do so, you must submit proof that you consider the marriage damaged beyond repair and proof substantiating the reasons you continued to live together after separation. This proof is usually submitted in the form of sworn statements by you and someone else who is familiar with your situation. Just to be safe, verify your legal rights and obligations with a qualified lawyer before applying for divorce in these circumstances.
Finally, you can still submit an application for divorce if you have children from your marriage who are not yet 18. However, you must demonstrate to the Court that you have already made acceptable arrangements for their care, welfare and development. Evidence to support this assertion may range from an agreed arrangement to a Court-issued Parenting Order.
Starting the divorce process
The actual process of divorce begins when you fill out the Application for Divorce form. This can either be done online at The Commonwealth Courts Portal or you can download the form from the Federal Circuit Court website. Once you have downloaded the form, you can enter your details in writing or you can type the information.
To make it official, a justice of the peace or lawyer must witness your signature of this form. If neither is available, another person authorised under applicable laws may witness your signature.
Submission of the application and supporting material
The next step is to send or deliver a package including the original signed document to a Family Law Registry. In addition to the original signed document and supporting material, be sure to include two photocopies of each document. A photocopy of your marriage certificate is also required. All of these documents will be filed at the Family Law Registry upon receipt.
Options for filing your application for divorce
You do not need your husband’s or wife’s approval to file for divorce. Nor do you need their cooperation. However, their cooperation or lack thereof does influence how you file.
If your spouse disagrees with your decision to apply for divorce, you can still file a sole application. You could also file a sole application for divorce if you cannot locate your husband or wife. A sole application is one that you prepare and submit yourself. In this case, you are the only applicant and your spouse is the respondent.
On the other hand, if he or she agrees, the two of you can file a joint application for divorce. He or she would then help with the preparation and submission of the application.
Filing the application
The Court assigns a file number to each divorce application submitted to a Family Law Registry. In addition to this file number, you will get a time and date for the hearing.
Courts retain custody of original documents filed by joint applicants. Each of you will get a sealed copy.
If you are a sole applicant, the Court will give you both sealed copies. It is your responsibility to have one of them served on your spouse. In addition to the sealed copy of the application, he or she must also get an information brochure provided by the Court.
Important points about serving the copies
You should be aware that the sealed copy of the divorce application and associated paperwork does not have to be served on your spouse if you are joint applicants.
As a sole applicant, you are responsible for service of the application on your spouse. The deadline for service of these papers is at least 28 days before the hearing if your spouse lives in Australia. It is or 42 days if he or she lives abroad. You are not allowed to deliver the papers yourself. Instead, you can send the papers through the mail or have a process server handle the matter.
Either way, the papers cannot be served without your spouse’s address. If you are unable to verify a valid address or locate your spouse after making reasonable attempts to do so, there are other options. You can either make an application to allow alternative service or skip it altogether.
The hearing
The hearing is the next step. However, attendance is not mandatory unless:
- you made a sole Application for Divorce and there are children who are not yet 18
- your spouse is fighting or otherwise opposing the application
If your attendance is not required, the Registrar will make a decision about your application in Chambers. It will be approved and a Divorce Order will be issued as long as the Registrar finds:
- that the Court has legal standing to make a ruling;
- the application has been served on your spouse;
- you were legally married;
- the marriage has broken down and there is no chance of reconciliation
- there are acceptable arrangements in place for any children from the marriage who are not yet 18
The Order will take effect one (1) month and one(1) day after the hearing date.
Whilst it may be the case that you’re able to do the divorce process yourself, divorce often has massive ramifications on other facets of both family law and estate planning law. It’s prudent to involve your lawyer in this process.
