Australia: What is the process for getting a divorce?

The divorce process is a separate process to that of a property settlement after separation between a married couple. A divorce does not deal with spousal or child maintenance and does not deal with how the parties send time with the children upon separation. (For more information about those matters, please see my earlier article: What happens after separation?)

The property settlement deals with how the assets owned by the parties are divided. The divorce process deals with ending the marriage of the parties.

How soon should you get a divorce?

Once you have separated from your spouse, it is important to assess whether you want a divorce immediately. The only prerequisite to obtain a divorce is that you need to have been separated for 12 months.

Further, there are time periods by which you need to bring proceedings to deal with the property settlement, if you have already obtained a divorce. If you apply for a divorce immediately upon completion of the 12 month prerequisite, and you have not dealt with the property settlement within one year of the grant of divorce, then you are out of time to bring proceedings against the other party to deal with the property of the marriage, unless the court grants leave for special circumstances.

Applying for a divorce order online

In order to obtain a divorce order, you must apply online using the Commonwealth Courts Portal. Stacks Law Firm is already registered with the portal and can prepare your divorce for you without any pain.

The first thing to do is to book an appointment with your lawyer and bring the following:

  • Marriage certificate
  • Identification
  • Details of any children under the age of 18
  • Any current or pervious orders relating to family law

Your solicitor will go through the application with you and ask the relevant questions.

You may submit the application individually, or jointly with your spouse. Whether you apply individually or jointly will determine whether you and your spouse are required to attend the divorce hearing.

Applying for a divorce order individually

If you file an application for a divorce order individually, because your spouse does not agree to sign a joint application, or because you don't want to liaise with your spouse, and if there are no children under the age of 18, then neither party is required to attend the hearing.

However, with an individual application, the applicant is required to serve the documents on the other party, receive a confirmation of service back from the other party, and file an affidavit of service and an affidavit proving the spouse's signature.

If you file a sole application and there are children under the age of 18, you (the applicant) must attend the hearing. You may apply to attend by telephone, or you may attend at the relevant registry. In this case, you are still required to serve the documents on the other party, receive a confirmation of service back from the other party, and file an affidavit of service and an affidavit proving the spouse's signature.

Where an individual application is filed, the other party may file a response to the divorce requesting changes to the application if they believe the facts in the application are incorrect, or they object to the application for a divorce. In the event that a response is filed, the respondent is still not required to attend the hearing.

At the hearing, the judge will ask the parties about the application and will ensure that there are proper arrangements for the children to spend time with both parties. The judge will ask the parties if they still want to go ahead with the divorce and will make the order accordingly.

Applying jointly for a divorce order

If you file a joint application, where both parties sign the same application and agree to the divorce, then neither party is required to attend the hearing, regardless of whether there are any children under the age of 18 or not.

There is no need to serve the documents on the other party, or sign any extra affidavits.

Requirement to attend counselling if you have been married less than two years

If you have been married for less than two years, you will need to file a counselling certificate. You will be required to attend counselling and have the counsellor sign the certificate for you.

Your local Anglicare will be able to assist you with this. There may be a small fee to pay for the counselling.

What happens if you were married overseas and want to get divorced in Australia?

If you were married overseas, you can apply for a divorce in Australia if you or your spouse meet one of the following conditions. You or your spouse:

  • regard Australia as your home and intend to live indefinitely in Australia and are an Australian citizen or resident
  • are an Australia citizen by birth or descent
  • are an Australia citizen by grant of Australian citizenship
  • ordinarily live in Australia and have done so for 12 months immediately before filing for divorce

You must provide the court with a copy of your marriage certificate. If your marriage certificate is not in English, you need to file an English translation of it, and an affidavit from the translator.

The court filing fee for a divorce is currently $865, but you may be able to apply for a concession in certain circumstances.

Anneka Frayne
Family law
Stacks Law Firm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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