Applying for a divorce can be complicated and overwhelming so we’ve decided to break it down for you into a step by step process. Remember if you’re making a sole application, you are the Applicant and your spouse is the Respondent. The Federal Circuit Court of Australia has the jurisdiction to deal with the dissolution of marriage. The granting of a divorce does not determine issues of financial support, property division or parenting arrangements. It simply recognises that the marriage has ended. If you intend to apply for maintenance for yourself or a division of property, you must file a separate application within 12 months of the date the divorce becomes final. Otherwise, you will need the Court’s permission to apply.
Can I get divorced?
Either you or your spouse must:
– be born in Australia or become an Australian citizen by descent
– be an Australian citizen by grant of Australian citizenship
– be lawfully present in Australia for the last 12 months and intend to continue living here
If you meet any of the above, you are eligible to get a divorce in Australia.
Next step – Prove that your marriage has broken down and there is no reasonable likelihood that you will get back together
This may seem overwhelming so let’s take a step back. The Family Law Act 1975 established the principle of no-fault divorce in Australia. The only grounds for divorce is that the marriage has broken down irretrievably. When granting a divorce, the Court does not consider why the marriage ended and the only ground for divorce is that the marriage broke down and there is no reasonable likelihood that the parties will get back together. It is possible to live together in the same home and still be separated. You will need to show that you and the spouse manage independent bank accounts, sleep in different rooms, don’t perform household duties for each other, maintain separate social lives and may have notified family and friends that the marriage has broken down. If you continue to live with your spouse in the same house post separation you will have to provide an affidavit that proves that there was a change in the marriage (gradual or sudden) to demonstrate and confirm the separation.
You must prove that you have been separated for 12 months and 1 day
You have to be able to provide evidence that you and your spouse are indeed separated and live independent lives. Have you told your family and friends about your divorce? Are you financially independent? Do you live completely independent social lives?
Remember: you need to prove that your marriage has broken down and is irreparable.
What does it mean to serve the Application of Divorce and how do I do it?
You have to serve the Application for Divorce on the respondent if you file a sole application. You can serve documents either by hand, post or send them to the respondent’s lawyer when relevant. If you can’t serve the documents, you must apply for a service order in court. For a more detailed explanation on this topic, read our blog on “Having trouble serving your divorce application on your spouse?”
What if I have children?
If there are children who are below the age of 18, you should try and include as much information on the divorce application on the arrangements you and your spouse have made for the children post-separation. The courts’ main focus is always the best interests of the child. Things such as living arrangements, schooling, health, financial assistance etc should be talked out with your spouse as you want your divorce to have the least impact as possible on your children.
What does it cost?
The filing fees are $900.00 and these costs are shared if it’s a joint application. If you are the sole applicant, you will have to pay the entirety of the fee. If you receive a Centerlink benefit you will be entitled to a reduced fee of $300.00. If it is a joint application, then both parties must be eligible for the reduction, to receive it.
What happens after?
If you have no children under the age of 18, you are not required to attend the court hearing. If you have made a joint application, you and your spouse are not required to attend the court hearing (even if there is a child of the marriage aged under 18). However, if you have made a sole application and there are children under the age of 18, you (the Applicant) is required to attend the court hearing. Your divorce will be finalised within 1 month and 1 day, unless a special order was made to quicken the process. You will receive your original divorce order via the Commonwealth Courts Portal with an electronic seal and signature.
It’s a good idea to seek some legal advice to clarify any doubts you may have. If you have any questions you need clarifying on serving documents on your spouse feel free to send me a message
Author bio – Divorce Right Team – Shenaia Nanayakkara
We create practical and useful resources to guide you through your divorce process. Our mission is to change the face of divorce and create peace in families. We have created a revolutionary new way for you to heal and get over your divorce or break-up. This unique method helps you manage the conflict, re-frame your relationship with your partner and finalize all the paperwork so you can move on to the next chapter of your life.