In order to obtain a legal divorce you must file an Application for Divorce in the Federal Circuit and Family Court of Australia.
The application form is available on the Court website, however it is always best to seek advice and assistance from a qualified Family Lawyer when completing the process to ensure that the correct information has been included and to avoid the Court rejecting your application.
If you have been married for less than two (2) years, you will also need to file a counselling certificate. The two year period is calculated from the date of marriage to the date of applying to the Court for a divorce.
You and your spouse must also have been separated for at least 12 months before applying for a divorce. It is possible for you and your spouse to be separated but remain living in the same home during the 12 months before applying for divorce. This is known as ‘separation under the one roof’. If this applies to your situation, you need to prove to the Court that you were separated during this time, even though you were living in the same home.
There are two types of Applications for Divorce, a ‘sole application’ and a ‘joint application’. A sole application is filed by one party who is seeking the Divorce and then served on / given to the other spouse. If you make a sole application, you are known as the applicant. The other party is known as the respondent. On the other hand, ‘a joint application’ is completed by both of the parties and therefore does not need to be ‘served’ on the other party.
There is a fee payable to the Court when filing an Application for Divorce. The current filing fee is $940. You may be entitled to a reduced fee of $310 if:
- you hold any of the following cards issued by the Department of Human Services: health care card, pensioner concession card, Commonwealth seniors health card or any other card issued by the Department Human Services or the Department of Veterans’ Affairs that certifies your entitlement to Commonwealth health concessions, or
- you have been granted Legal Aid, or
- you are receiving youth allowance, Austudy or ABSTUDY payments, or
- you are aged 18 or under or an inmate of a prison or otherwise legally detained in a public institution.[1]
When you file your Application 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.
In terms of jurisdiction or eligibility to apply in Australia, you can apply for a Divorce in Australia if you meet one of the following criteria:
- regard Australia as your home and intend to live indefinitely in Australia are an Australian citizen or resident, or
- are an Australia citizen by birth or descent
- are an Australia citizen by grant of an Australia citizenship
- ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.[2]
If you are an Australian citizen or permanent resident, you are required to file a copy of your Australian passport, Australian citizenship certificate or other proof of your permanent residency.
If you are not an Australian citizen or permanent resident but have been living in Australia for at least 12 months before applying to the Court for a divorce, you may need to provide evidence that you have been resident in Australia for the past 12 months. [3]
Once you file your Application for divorce with the Court, you will be notified of the date and time of your divorce hearing, together with the name of the Registrar who will hear and determine your application.[4]
Divorce hearings are currently being conducted electronically via video link (using Microsoft Teams) before a Deputy Registrar or Judicial Registrar of the Court. Court attendance (electronically) is only required if:
- you have filed a sole application and there is a child of the marriage* aged under 18 years at the time of filing
- you have indicated that you wish to attend in the application
- either party has objected to the divorce being heard in the absence of the parties, or
- the respondent files a Response to divorce opposing the application.
Once your divorce is granted, it will become final one month and one day later, unless a special order is made by the Court to shorten that time.
It is important to note that a legal Divorce is separate from a property settlement (the division of your joint assets and liabilities). The Divorce Application also does not address parenting custody matters. These aspects need to be dealt with separately.
If you are separated and seeking advice regarding a Divorce, please do not hesitate to contact our experienced Family Law team on (03) 9614 7111.
[1] https://www.fcfcoa.gov.au/fl/pubs/guidelines-reduced-fee-divorce-nullity
[2] https://www.fcfcoa.gov.au/fl/divorce/apply
[3] https://www.fcfcoa.gov.au/fl/divorce/apply
[4] https://www.fcfcoa.gov.au/fl/divorce/hearings