Application for Divorce When Overseas
It is a common misconception that you cannot apply for a divorce in Australia if you are currently living overseas. In many cases, this is not correct.
Australian family law allows parties to apply for divorce even if one or both spouses are residing outside Australia, provided certain jurisdictional requirements are met. If you are living abroad but still have a sufficient connection to Australia, you may still be eligible to file your divorce application here.
Divorce in Australia
To apply for divorce in Australia, either the applicant or their spouse must:
- Regard Australia as home and intend to live indefinitely in Australia as an Australian citizen or resident;
- Be an Australian citizen by birth or descent;
- Be an Australian citizen by grant of Australian citizenship; or
- Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
The parties must also satisfy the Federal Circuit and Family Court of Australia (FCFCOA) (Court) that they have been separated for at least 12 months. This is a requirement for divorce in Australia.
The applicant must provide the Court with a copy of the marriage certificate.
If the marriage certificate is not in English, the applicant must file an Affidavit – Translation of Marriage Certificate together with a translated copy of the certificate and details of the translator’s qualifications.
If the parties have been married for less than two years, they must attend counselling and file a counselling certificate with the Court, unless an exemption applies.
Divorce Applications
Two types of divorce applications can be made in Australia: a sole application or a joint application.
A sole application is where one spouse applies for divorce. A joint application is where both parties to the marriage apply together.
Divorce applications are filed electronically through the Commonwealth Courts Portal.
Once a divorce application has been prepared, the applicant will be required to swear or affirm that the facts and circumstances set out in the application are true.
If it is a sole application, the applicant will need to make arrangements to serve the application on their spouse in accordance with the Court’s rules.
Overseas Applicant
If the applicant currently resides overseas, they can swear or affirm their affidavit (a written statement) before one of the following:
- A notary public who is exercising their function in that country;
- An Australian Diplomatic Officer or an Australian Consular Officer;
- A commissioner of the High Court of Australia who is authorised to administer oaths or affirmations in that country; or
- A commissioner of the Supreme Court of a State or Territory for taking affidavits who is empowered and authorised to act in that State or Territory.
In most cases, divorce hearings are conducted electronically (usually by telephone). Attendance is required only in certain circumstances, such as when there are children under 18, specific issues arise, service requirements are not straightforward, or a party elects to attend.
At the hearing, the Court will make a divorce order if satisfied that the legal requirements have been met.
After one month and one day, the divorce order will take legal effect and become final.
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Related Blog – How Long Does a Divorce Take in Australia?
