If you are wondering how to get a divorce in Australia, this guide will help you understand the basic steps to legally end your marriage. In Australia, the legal requirements for divorce are governed by the Family Law Act 1975 (Cth). This guide will walk you through the steps involved in obtaining a divorce, from understanding the legal grounds to applying for a divorce, finalising your divorce order, and addressing areas such as property and parenting.
Understanding divorce under Australian law
In Australia, divorce is governed by the Family Law Act 1975, which provides a no-fault system for divorce. This means that when applying for a divorce, you do not need to prove that your spouse was at fault for the breakdown of the marriage. The only grounds for divorce are that the marriage has broken down irretrievably.
Step 1: Meet the eligibility criteria
To apply for a divorce in Australia, you must meet specific legal requirements set out in the Family Law Act 1975 (Cth). These include:
- Separation for at least 12 months: You and your spouse must have been separated for a continuous period of at least 12 months immediately before filing for divorce. This period can include periods of living under the same roof, provided you can demonstrate that you were living separate lives during that time and no longer in a relationship.
- Australian citizenship or residency: At least one of you must be an Australian citizen, or you must have been living in Australia for at least 12 months before filing.
- Marriage certificate: You must provide a copy of your marriage certificate. If the certificate is in a foreign language, you will need to have it translated into English by an accredited translator.
What if you were married overseas?
If you were married overseas, you can still apply for a divorce in Australia as long as you meet the legal requirements, such as being an Australian citizen, permanent resident, or having lived in Australia for at least 12 months. You’ll need to provide a copy of your overseas marriage certificate, translated into English by an accredited translator if necessary. The Australian legal system recognises most overseas marriages for the purposes of divorce proceedings.
Step 2: Prepare your divorce application
Once you have confirmed that you meet the eligibility criteria, you can begin preparing your divorce application. This involves:
Completing the divorce application form
The application for divorce is an online form that can be completed through the Commonwealth Courts Portal. This portal allows you to access your court file, e-File documents, and view court orders 24/7.
Gathering supporting documents
You will need to provide supporting documents, such as your marriage certificate. If you lived under the same roof during the separation, you may need to provide additional evidence to demonstrate that you lived separate lives.
Deciding on the type of application
You can choose to file a sole application (if you are applying alone) or a joint application (if both parties are applying together). A joint application is generally simpler and may be processed more quickly.
Sole or joint application?
When filing for divorce in Australia, you can submit either a sole application or a joint application. A sole application is lodged by one spouse, who must then arrange to serve the divorce papers on the other party. A joint application is submitted together, which usually simplifies the process and removes the need for formal service. If there are no children under 18, joint applications may not require a court hearing at all.
Step 3: File your divorce application
After preparing your application and gathering the necessary documents, you can file your divorce application online through the Commonwealth Courts Portal. The filing fee for a divorce application is currently $1,125, although you may be eligible for a reduced fee if you are experiencing financial hardship.
Once your application is filed, the court will set a hearing date. If you have children under 18, the court will consider whether proper arrangements have been made for their care, welfare and development. If there are no children under 18, the court may grant the divorce without a hearing.
Step 4: Serve divorce papers if filing a sole application
If you have filed a sole application, you will need to serve the divorce papers on your spouse. This can be done by:
- Personal service: Delivering the documents directly to your spouse.
- Substituted service: If personal service is not possible, you may apply to the court for permission to serve the documents in another way, such as by email or post.
- Service on a spouse overseas: If your spouse is living overseas, you may need to arrange for service through the court or a diplomatic channel (if substituted service is not approved).
You will need to provide proof of service to the court, such as an affidavit confirming that the papers were served.
Step 5: Attend the divorce hearing – if required
In most cases, you will not need to attend a court hearing for your divorce. However, if there are children under 18 years of age or if the court requires further information, you may be asked to attend divorce proceedings. During the hearing, the court will consider your application and any relevant evidence before making a decision.
If the court grants the divorce, which happens in almost all cases, you will receive a divorce order, which will be effective one month after the hearing date. This order finalises the divorce and allows you to remarry.
Step 6: Finalise property & parenting arrangements
It’s important to note that the divorce process does not finalise any arrangements regarding children or property. These matters are dealt with separately.
Parenting arrangements
If you have children, you will need to make arrangements for their care and support. This may involve negotiating parenting arrangements or applying to the court for parenting orders.
Property settlement
You and your spouse will need to reach an agreement on how to divide your assets and liabilities, and organise any financial support such as spousal maintenance. If you cannot reach an agreement, you may need to apply to the court for property orders, which is organised in the Federal Circuit and Family Court of Australia.
Seeking professional assistance from a family lawyer is advised to ensure that your rights are protected and that any agreements are legally binding.
Time limits – how the date of your divorce affects property settlement
While there is no time limit to apply for a divorce in Australia once you’ve been separated for 12 months, there is a strict time frame for property settlement. After a divorce is granted, you have 12 months to apply to the court for property or spousal maintenance orders. For de facto relationships, the time limit is 2 years from the date of separation. If this time has passed, you’ll need special court permission to proceed, which may not be granted.
For this reason, it is generally recommended that you finalise your property settlement before proceeding with your divorce.
Additional considerations
Same-sex Marriages: Same-sex marriages are recognised under Australian law, and the divorce process for same-sex couples is the same as for heterosexual couples.
Religious divorces: If you have obtained a religious divorce, you must still file for a legal divorce in Australia through the Federal Circuit and Family Court .
Financial matters: If you have financial matters to resolve, such as spousal maintenance or property division, these should be addressed separately from the divorce application.
Counselling: In some cases, the court may require you to attend counselling and provide a counselling certificate before granting a divorce.
Seeking legal advice
Divorce can be complex and emotionally challenging. It’s important to seek legal advice to understand your rights and obligations and ensure that the divorce process proceeds smoothly. A family lawyer can provide guidance on the divorce process, assist with preparing and filing your application, and help negotiate parenting and property arrangements.
Conclusion
Getting a divorce in Australia involves several steps, from meeting eligibility criteria to finalising property and parenting arrangements. By understanding the process and seeking appropriate legal advice, you can navigate the divorce process more effectively and ensure that your rights are protected. Remember, the Family Law Act 1975 provides a framework for divorce, but each situation is unique, and seeking professional guidance can help you achieve a fair and equitable outcome.
