The Divorce Process in Australia
The divorce process in Australia differs based on whether the application is being made individually or jointly.
The Australia Divorce Process
An application for divorce in Australia can be made by one party to a marriage (sole application) or by both parties (joint application).
All divorce applications are made to Division 2 of the Federal Circuit and Family Court of Australia (‘the Court’).
Sole Divorce Application
The process of filing a sole divorce application in Australia involves the following steps:
- your attendance at Court will only be required if there are one or more children of the marriage under the age of 18 years.
- only the applicant is required to sign the application.
- the application needs to be served on the respondent.
Strict compliance with the service requirements is required to progress the application and obtain a divorce order.
Joint Divorce Application
The process of filing a joint divorce application in Australia involves the following steps:
- your attendance at Court will not be required unless you have stated in your application that you wish to attend the hearing.
- both parties are known as ‘joint applicants’ (that is, there is no ‘respondent’).
- one party completes the application and provides a copy to the other party to review and sign.
- both applicants must sign the application.
- you do not need to serve documents on the other party if you make a joint application.
Eligibility to Apply for a Divorce
1. Ties to Australia
At least 1 party to the marriage must have:
- been born in Australia;
- become an Australian citizen (by descent or by conferral); or
- been living in Australia for at least the last 12 months and intend to continue to live in Australia with a valid visa.
If you are living overseas and meet 1 of the above criteria, you are required to include an address in Australia for service, which may be your spouse’s address. Note that further requirements apply if you are seeking to use your spouse’s address as your address for service.
Read more about divorce applications when overseas here.
2. Broken Down Irretrievably
The marriage must have broken down ‘irretrievably’ and there must be no reasonable likelihood that you will get back together.
To apply for divorce, either you or your spouse must have considered the marriage as having broken down on the date of separation and have communicated this belief to the other spouse.
3. Timeframe
You and your spouse must have been separated for at least 12 months and 1 day.
If you and your spouse were separated under the same roof for some or all of this required period, specific matters will need to be addressed in the Court documents.
4. Marriage Certificate
You must file a copy of your marriage certificate:
- If you were married in Australia, you can obtain a copy from Births, Deaths and Marriages in your state or territory; or
- If you were married outside of Australia and your marriage certificate is not in English, you will need to have the certificate translated and attach the English and non-English versions to an Affidavit of Translation of Marriage Certificate prepared by the translator.
If you were not married in Australia and cannot obtain a copy of your marriage certificate, you will need to file an affidavit with your application explaining why you are unable to provide the certificate.
After the Divorce Application Is Filed
After you file an application, a hearing date will be set. At least one hearing concerning the application will occur. Sometimes, for various reasons, a further Court date will be required.
Usually, a divorce order will be made at the first hearing but, in some cases, a divorce order will not be made until a second or further hearing.
A further hearing may be required if, for example, you are making a sole application and you have been unable to successfully serve your spouse, or if your spouse opposes the order.
Generally, if the divorce order is not appealed, it becomes final 1 month and 1 day after it is made by the Court.
Remarrying
You cannot remarry until your divorce is final and has taken effect.
Contact Us
For more information about the divorce process in Australia, contact us at Bambrick Legal today. We offer a free, no-obligation 15-min consultation for all enquiries.
- Fill in our enquiry form here
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Read more about our Family Law services here.
Related Blog – How Long After Separation Can You Claim Property?
