Wondering how to get a divorce?
Getting divorced can be a challenging and emotionally taxing process. In Australia, the legal requirements for divorce are governed by the Family Law Act 1975 (Cth). This comprehensive guide will walk you through the steps involved in obtaining a divorce, from understanding the legal grounds to navigating the court process and finalising your divorce order.
How to Get a Divorce
To apply for a divorce in Australia, you must satisfy certain legal requirements set out in the Family Law Act 1975 (Cth). The primary ground for divorce is that the marriage has broken down irretrievably, which is demonstrated by a minimum 12-month separation period.
An irretrievable breakdown means that there is no reasonable likelihood of the parties reconciling. This is evidenced by the couple having lived separately and apart for a continuous period of at least 12 months immediately before filing for divorce. Importantly, it is possible to live under the same roof and still be considered separated, provided you are not living together as a couple.
Divorce applications are handled by the Federal Circuit and Family Court of Australia, which is responsible for determining whether the legal requirements for divorce have been met and granting divorce orders.
Key Legal Reference
- Family Law Act 1975 (Cth): View Full Text
Key Case Reference
- In the Marriage of Todd (No 2) [1976] FamCA 11: The Full Court held that in determining whether there has been a separation, the court must consider the parties’ subjective intentions along with the objective evidence of their conduct and circumstances.
How to Get a Divorce: Preparing Your Divorce Application
Deciding Between a Joint or Sole Application
When applying for divorce, you have the option to make a joint application with your spouse or a sole application on your own. A joint application is usually the most straightforward option, as it indicates that both parties agree to the divorce and can streamline the process.
Consider making a joint application if:
- You and your spouse both agree to the divorce.
- You have been separated for at least 12 months.
- You have agreed on arrangements for any children under 18.
A sole application may be necessary if:
- You cannot locate your spouse to make a joint application.
- Your spouse is unwilling to participate in a joint application.
- There are complications or disagreements regarding the divorce.
Ensuring Proper Arrangements for Children Under 18
If you have children under the age of 18, the court must be satisfied that proper arrangements have been made for their care, welfare, and development before granting a divorce. This includes matters such as parenting time, decision-making responsibilities, and financial support.
To demonstrate proper arrangements, you can:
- Create a parenting plan: A written agreement outlining the agreed-upon arrangements for your children.
- Obtain consent orders: Court orders formalising your parenting arrangements, which can be made by agreement or after a court hearing.
- Provide evidence of existing arrangements: If you already have informal arrangements in place that are working well, you can outline these in your divorce application.
Compiling Necessary Documentation
To apply for a divorce, you’ll need to complete several forms and gather supporting documents. The key forms include:
- Application for Divorce (Form 3): The main form outlining your grounds for divorce and details of your marriage and separation.
- Marriage Certificate: A copy of your official marriage certificate (if married in Australia) or an equivalent document (if married overseas).
- Affidavit of eFiling (Divorce): A declaration that your eFiled divorce application is true and correct.
Additional documents may be required depending on your circumstances, such as:
- Parenting plan or consent orders (if you have children under 18).
- Affidavit of Service (if making a sole application).
- Affidavit proving separation under one roof (if applicable).
- Translation of documents not in English.
The Federal Circuit and Family Court of Australia provides a comprehensive Divorce Service Kit with all the necessary forms and guidance for completing them.
How to Get a Divorce: Navigating the Divorce Process
Filing Your Divorce Application
Once you have completed your divorce application and gathered the necessary documents, you can file your application with the Federal Circuit and Family Court of Australia. This can be done online through the Commonwealth Courts Portal.
When filing your application, you’ll need to pay a filing fee. As of 2021, the fee for a divorce application is $940. However, if you hold certain government concession cards or can demonstrate financial hardship, you may be eligible for a reduced fee of $310. For more information on financial hardship and fee reductions, visit the court’s fee page here.
Serving Divorce Papers on Your Spouse
If you are making a sole application, you must “serve” (legally deliver) a copy of your divorce application on your spouse. This ensures they are aware of the proceedings and have an opportunity to respond.
Service can be completed by:
- Hand: Delivering the documents in person (you cannot serve the documents yourself; this must be done by someone over 18).
- Post: Sending the documents by registered post to your spouse’s last known address.
- Email: Sending the documents electronically, provided your spouse has consented to being served by email.
In a joint application, service is not required as both parties are involved in the application process.
Attending the Divorce Hearing
After filing your application, the court will set a hearing date. The divorce hearing is typically a brief, administrative procedure where a Registrar will review your application and ensure the legal requirements for divorce have been met.
In most cases, attendance at the divorce hearing is not required if:
- You have made a joint application.
- You have made a sole application and there are no children under 18.
- You have made a sole application, there are children under 18, but the court is satisfied with the proposed arrangements.
You may need to attend the hearing if:
- You have made a sole application and have children under 18, and the court requires further information about the arrangements for their care.
- The Registrar has any concerns or questions about your application.
If you are required to attend, the hearing will typically be brief, and the Registrar will ask questions to clarify any issues before making a decision on your application.
After the Divorce Order is Granted
If your divorce application is successful, the court will grant a divorce order. However, the divorce order does not become final until one month and one day after the hearing date. This delay allows time for either party to appeal the decision if they believe there are grounds to do so.
Once the divorce order becomes final, your marriage is legally ended. You will receive a copy of the divorce order, which serves as proof of your divorce.
It’s important to note that a divorce order only legally ends your marriage; it does not automatically resolve other issues such as property division or parenting arrangements. These matters can be dealt with separately through the family law system, either by agreement between the parties or through court orders.
Special Considerations and Scenarios
Divorcing After Less Than 2 Years of Marriage
If you have been married for less than two years, you will need to attend counselling with a family counsellor or nominated counsellor before you can apply for a divorce. This requirement is designed to ensure that all efforts have been made to reconcile before proceeding with a divorce.
After attending counselling, you will need to obtain a counselling certificate from the counsellor, which must be filed with your divorce application. If you are unable to attend counselling due to exceptional circumstances (such as family violence or geographical distance), you may be able to seek permission from the court to apply for a divorce without meeting this requirement.
Applying for Divorce While Overseas
If you or your spouse are overseas, you may still be able to apply for a divorce in Australia, provided you meet certain requirements. To be eligible, you must demonstrate that:
- You regard Australia as your permanent home.
- You are an Australian citizen or resident.
- You have lived in Australia for at least 12 months before filing for divorce.
If you are making a sole application while overseas, you will need to serve the divorce papers on your spouse in accordance with the laws of the country where they reside. This may involve seeking assistance from the court or a process server in that country.
Responding to a Divorce Application
If you have been served with divorce papers and do not agree with the application, you have the right to respond. To do so, you will need to file a Response to Divorce (Form 3A) within 28 days of being served.
In your response, you can contest the divorce by arguing that:
- The grounds for divorce have not been met (e.g., you have not been separated for 12 months).
- The court does not have jurisdiction to hear the application.
- Proper arrangements have not been made for children under 18.
If you file a response, you will need to attend the divorce hearing to present your case to the court. The court will then consider both the application and response before making a decision.
Frequently Asked Questions About Getting Divorced in Australia
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How long does it take to get a divorce in Australia?
The time it takes to finalise a divorce can vary depending on your circumstances. However, in most cases, you can expect the process to take around 4 months from the time you file your application to the divorce order becoming final. -
Can I get a divorce if I don’t know where my spouse is?
Yes, it is possible to apply for a divorce even if you cannot locate your spouse. In these circumstances, you will need to make a sole application and seek the court’s permission to dispense with service. You will need to demonstrate that you have made reasonable attempts to locate your spouse before the court will consider granting your application. -
Do I need a lawyer to get a divorce?
While it is not mandatory to have a lawyer to apply for a divorce, it is recommended that you seek legal advice to ensure you understand your rights and obligations. A lawyer can help you navigate the process, ensure your application is completed correctly, and advise you on related matters such as property settlement and parenting arrangements. -
What if my spouse and I have already divided our property?
A divorce order does not automatically deal with the division of property. If you and your spouse have already reached an agreement on property division, you can formalise this through a binding financial agreement or consent orders. If you have not yet resolved property matters, you will need to do so separately from the divorce process. -
Can I oppose a divorce application?
In most cases, it is not possible to oppose a divorce application if the legal requirements for divorce have been met. However, if you believe that the grounds for divorce have not been satisfied (e.g., you have not been separated for 12 months), you can file a response to the application and contest the divorce.
Conclusion and Next Steps
Getting a divorce in Australia involves navigating a range of legal and emotional challenges. By understanding the requirements and process involved, you can ensure that you are well-prepared and able to move forward with confidence.
Remember, while the divorce process itself is relatively straightforward, it is important to also consider related matters such as property settlement and parenting arrangements. Seeking legal advice and support can help you make informed decisions and achieve the best possible outcome for your unique circumstances.
If you are considering applying for a divorce, your next steps should be to:
- Ensure you meet the eligibility requirements, including the 12-month separation period.
- Gather necessary documents and information, including your marriage certificate and details of any children under 18.
- Decide whether to make a joint or sole application.
- Complete the required forms and file your application with the Federal Circuit and Family Court of Australia.
- Attend the divorce hearing, if required.
- Finalise any related matters, such as property division and parenting arrangements.
For further information and support, visit the Federal Circuit and Family Court of Australia website or contact one of our team at Mediations Australia.
