What is a Divorce?
A divorce is a legal dissolution of a marriage where it has irretrievably broken down.
You can obtain a divorce through filing an Application for Divorce at the Federal Circuit & Family Court of Australia (Division 2). The Application for Divorce can be completed online.
The Federal Circuit and Family Court of Australia website has a useful online detailed guide available to download. You should download and read the detailed guide before completing and filing the Application for Divorce. Click below to download the Federal Circuit & Family Court of Australia's Application for Divorce Kit:
As the Application for Divorce can be tricky at times (depending on your situation), the parties may need to engage lawyers to properly prepare the Application for Divorce. However, a lawyer can only act for one party, and not both parties due to conflicts of interest.
A divorce is only related to the marital status of the parties. It is treated separately to family law property issues, children and parenting arrangements, child support payments, spousal maintenance, and deed of releases (estate planning to avoid family provision claims).
Eligibility to Apply for a Divorce
Before you and the other party decide to get a divorce, you and/or the other party will need to determine whether the parties meet the eligibility requirements to apply for an Application for Divorce in Australia. You and/or the other party will need to satisfy one of the following categories:
Born in Australia;
An Australian citizen by descent (born outside Australia and at least one parent was an Australian citizen and your birth is registered in Australia);
An Australian citizen by grant of Australian citizenship; or
Lawfully present in Australia and intend to continue living in Australia (living in Australia for at least the last 12 months).
You and the other party will also need to meet the following criteria to apply for a Divorce:
You and the other party are married;
You and/or the other party meet the above eligibility requirement;
You and the other party have been separated for at least 12 months and 1 day (or accumulated periods of separation amounting to 12 months but a block period of reconciliation cannot exceed 3 months or the time of separation restarts); and
The marriage has broken down and there is no reasonable likelihood of reconciliation.
Documents to File with a Divorce Application
Basic documents you will need to file with your completed Application for Divorce include the following:
Marriage Certificate:
- If you do not have a copy of your marriage certificate, you should obtain a copy of your marriage certificate with the Registry of Births, Deaths, and Marriages in the capital city that you were married in Australia.
- If the marriage certificate is not in English, you will need an accredited translation of the marriage certificate in English.
Evidence of Jurisdiction:
- Australian Passport;
- Birth Certificate;
- Australian Citizenship Certificate;
- Documents showing that you and/or the other party are an Australian citizen or an Australian resident; or
- Passports showing the date of arrival at least one year prior and a valid or current visa if you or the other party are not Australian citizens, but are lawfully present in Australia and intend to continue to live in Australia and have been living in Australia for the last 12 months.
Other Documents (if applicable):
- Consent Orders;
- Family Court Orders;
- AVOs (Apprehended Violence Orders);
- Any other court orders;
- Financial Agreements;
- Child Support Agreement; or
- Parenting Agreements.
Completing an Application for Divorce
You will need to register for an online account with the Commonwealth Courts Portal (ComCourts Portal). This is the online court portal to e-file an Application for Divorce and to also upload any supporting court documents. You can apply for an Application for Divorce through the online ComCourts Portal. It is a user-friendly form where you fill out the necessary information and upload the appropriate documents where prompted such as a copy of your marriage certificate etc.
If you are completing the Application for Divorce by yourself, you should tick off that the Application is a sole Application for Divorce. Only you will need to sign.
If you and the other party are completing the Application for Divorce together, you should tick off that the Application is a Joint Application for Divorce. Both you and the other party will need to sign.
Once you have finished going through the online Application for Divorce and uploaded the necessary documents, you should print out the Affidavit for eFiling Application (Divorce). There are 2 ways of signing the Affidavit: swearing or affirming. Swearing means that you and/or the other party are taking a religious oath of truth, whilst affirming means that you and/or the other party are making a non-religious statement of truth.
You and/or the other party must sign the completed Affidavit for eFiling Application (Divorce) before a qualified witness (i.e. a legal practitioner, Justice of the Peace etc). If you and/or the other party are outside of the Commonwealth of Australia, then you and/or the other party must sign the Affidavit for eFiling Application (Divorce) before a Notary Public, Australian Diplomatic Officer, Australian Consular Officer, or an employee of the Australian Trade Commission.
Once you and/or the other party have signed the Affidavit for eFiling Application (Divorce), you should e-file the Affidavit for eFiling Application (Divorce). Save a copy and print out the filed Affidavit for eFiling Application (Divorce).
Court Filing Fees for Divorce
When you e-file your documents online through the ComCourts Portal, you will be directed to payment of the court filing fee for an Application for Divorce. You can pay the filing fee through a credit card or EFT payment.
As of July 2021, the court filing fee for an Application for Divorce is $940.00.
If you are eligible for a reduction in the court filing fees, the reduced court filing fee for an Application for Divorce is $310.00. Generally, you and/or the other party will be eligible for the reduction in court filing fees if you fulfil any of the following requirements:
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 of Human Services or the Department of Veterans Affairs that certifies your entitlement to Commonwealth health concessions, or
You have a grant of Legal Aid, or
You receive youth allowance, Austudy or ABSTUDY payments, or
You are aged 18 or under or in prison or otherwise legally detained in a public institution.
However, if you do not fall into any of the above categories, you could still apply for a reduced court filing fee if you can show that you will endure financial hardship if you are required to pay the full court filing fee. The Court will take into account your income, living expenses, assets, and liabilities and consider whether the court filing fee would cause you financial hardship. You should complete the Application for Reduction of Payment of Divorce or Decree of Nullity - Financial Hardship. Download this form on the Federal Circuit & Family Court of Australia's website.
If you are making a joint Application for Divorce, both parties must meet the eligibility requirements for the reduced court filing fee. However. if only one party is eligible for the reduction in court filing fees, then the full court filing fee will be payable and no reduction will be applied.
Special Circumstances - When to Engage a Lawyer
You should consider speaking to a lawyer when applying for a divorce in special circumstances such as:
If you have children under the age of 18 years old and you are making a sole Application for Divorce;
If you and your ex were separated but lived under the same roof during the separation period;
If there were multiple periods of separation making up to at least 12 months, an explanation in a supporting affidavit will be required;
If you and the other party were married for less than 2 years, the parties will need to attend marriage counselling;
If you are making a sole application and your ex is hostile;
If you expect to have problems with serving your ex (you cannot personally serve your ex); or
If there are any discrepancies in the parties' names.
The above issues may also have additional requirements such as marriage counselling or a supporting affidavit.
Speak to a lawyer about preparing an affidavit which is required in the following situations:
If you cannot file your marriage certificate;
If the marriage certificate is not in English;
If the parties lived separated but under the same roof during the 12 months of separation;
If you have filed an Application in a Proceeding
Service of Divorce Documents
If you and the other party have completed and filed a joint Application for Divorce, the requirement of service is not needed. You and the other party will each need to retain a copy of the filed court documents and the Family Court prescribed brochure, 'Marriage, Families, and Separation'.
The Court has published a Divorce Service Kit which is a useful guide on how to serve the documents in a divorce. Click below to read more on the Federal Circuit & Family Court of Australia website about service:
If you have completed and filed a sole Application for Divorce, the following documents need to be served on the other party:
Sealed Application for Divorce (with Notice of Application for Divorce at the front);
Sealed Affidavit of eFiling Application (Divorce);
Family Court prescribed brochure, 'Marriage, Families and Separation';
Acknowledgement of Service (for the other party's signature);
Any other documents filed with the Application for Divorce;
If the documents are being served by post then:
- stamped self-addressed envelope for the other party to return the signed Acknowledgement of Service. We recommend using post with tracking facilities such as Express Post
- letter to the other party confirming the enclosed documents and instructions to sign and return the Acknowledgement of Service
The deadline to complete service of the documents on the other party is at least 28 days before the date of the divorce hearing, or if the other party is overseas then 42 days before the date of the divorce hearing.
You can affect service by the following methods:
By Post
If you are confident that the other party will be cooperative then you should consider serving by post.
The other party will need to sign the Acknowledgement of Service and send it back to you. Once you receive the signed Acknowledgement of Service, then you should prepare, sign and file an Affidavit of Service - by Post and attach the Acknowledgement of Service signed by the other party. You should sign the Affidavit of Service - by Post before a qualified witness. Please ensure that the qualified witness also signs the Annexure Note on the Acknowledgement of Service.
If the other party fails to co-operate and does not return the signed Acknowledgement of Service, you will need to arrange for the documents to be served to the other party by hand.
By Hand
You can arrange for an adult (over 18 years old) to serve the documents on the other party by hand. The adult can be a friend or a hired commercial process server.
Unfortunately, you cannot personally affect service by hand on the other party. The server must be someone who is not the Applicant.
Once service has been effected, the server must complete and sign an Affidavit of Service by Hand with the signed Acknowledgement of Service. You must then complete and sign an Affidavit Proving Signature. All affidavits must be signed before a qualified witness, and the witness to the affidavits must sign the Annexure note in the Acknowledgement of Service. You should then e-file the Affidavit of Service by Hand, Acknowledgement of Service, and the Affidavit Proving Signature.
Other Party's Lawyer
If the other party has a lawyer, you can affect service on their lawyer if they have instructions from their client to accept service. The lawyer will sign and return the Acknowledgement of Service which you should e-file online.
Problems in Service
If you are having difficulties in serving the other party, you can apply to the Court for substituted service or dispensation of service. You will need to file a supporting affidavit about your attempts in serving the documents on the other party. You should speak to a lawyer if you are having issues serving the other party and need to discuss the options of substituted service or dispensation of service.
Divorce Hearing & Court Etiquette
When you e-file your Application for Divorce, a date and a time for the divorce hearing will be allocated.
You and the other party will be required to attend the divorce hearing if you have made a sole Application for Divorce and there is a child under 18 years old. Due to the ongoing Covid-19 situation, some registries are conducting the divorce hearing via telephone or through Microsoft Teams Meeting. The Court registry will advise the parties on how the divorce hearing will be conducted and the dial-in details.
You and the other party will not be required to attend the divorce hearing if:
There are no child/ren of the marriage under 18 years old; or
You and the other party have made a joint Application for Divorce.
At the scheduled time and date of the divorce hearing, turn up at least 10 minutes prior to the scheduled time. This will ensure that you are early and can deal with any technical issues prior to the scheduled time if the divorce hearing is via telephone or video.
If and when divorce hearings are in person at the physical court registry, check the courtroom number and wait outside of the courtroom. An associate of the registrar will come outside and call out a list of the matters listed before the registrar. Speak to the associate and inform them of your surname and you are there for a divorce hearing before the registrar. They will note your surname and direct you to sit and wait outside the courtroom, or inside the courtroom. When you enter into or leave any courtroom, it is courteous to give a little bow to the Registrar or Judge. When your case is called by the Associate or Registrar, approach the bar table (table where the lawyers sit). If you are the Applicant (person who applied for the Application for Divorce), you should sit at the left side of the bar table. If you are the Respondent (person who received the Application for Divorce from the other party), you should sit at the right side of the bar table.
You should bring the following documents at the divorce hearing:
Filed Application for Divorce;
Filed Affidavit of Service (for sole Application for Divorce);
Filed Acknowledgement of Service (for sole Application for Divorce);
Filed Affidavit Proving Signature (for sole Application for Divorce); and
Supporting documents for the Application for Divorce including your marriage certificate, evidence of jurisdictions (Australian passport, Australian citizenship, etc), affidavit (about being separated but living under the same roof, or an accumulation of periods of separation to 12 months), court orders, parenting agreements, AVOs, etc.
The Registrar may ask you questions about the history of the relationship, whether the appropriate court documents have been filed, whether the Applicant has served the Respondent properly, and any other issues relating to the marriage, relationship, and children. So be prepared to answer the Registrar. Listen carefully to the Registrar's questions and answer in a clear voice. Most people feel anxious and nervous about appearing in Court so it is fine if you need the Registrar to repeat their question or if you don't understand the question.
Practical tips for court etiquette:
When you are at the bar table, stand up when the Registrar is speaking to you or when you are speaking to the Registrar;
When you are at the bar table, do not interrupt when the Registrar or the other party or their lawyers are speaking. Take note of what you wish to say and wait for the Registrar to give you time to speak;
Always be polite and courteous to all parties (Registrar, Associate, other party, lawyer and any other person in Court);
Turn your mobile phone on silent, or turn it off completely;
Wear clothes that are appropriate for a formal serious occasion;
Your appearance should be neat and tidy;
Do not eat, drink, or smoke in the courtroom; and
Do not bring child/ren to court. You should make appropriate childcare or babysitting arrangements.
Effect of a Divorce Order
If the Application for Divorce was granted by the Registrar at the divorce hearing, the divorce order will take effect 1 month after the date of the divorce hearing. The parties can obtain and download a copy of the divorce order online on the ComCourts Portal. The Divorce Order will contain the Court's electronic seal and signature.
Once the divorce order is effective, the parties will no longer be married to each other and be free to re-marry another person.
In addition, the time limitation period to file family law property court proceedings starts from the date of the divorce. The parties will have 12 months from the date of divorce to file their family law property court proceedings. After the expiration of the limitation period, the parties will need to persuade the Court to permit their family law property court proceedings. This issue should be addressed in their supporting affidavit and the party should seek an order where the Court grants leave for the application to be heard despite it being filed outside of the time limitation period.
On a lighter note, many people enjoy celebrating their newly divorced status with a Divorce or Freedom party when the divorce order comes into effect. It brings closure and allows people a time to reflect and appreciate the people in their support network who were there through the tough times of separation and divorce.
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*** Disclaimer:
Information on this website or post does not constitute legal advice and that electronic dialogue with readers does not constitute any form of client engagement unless specifically agreed.
The information is provided on a general basis only. We strongly recommend that you seek your own independent advice from a lawyer about your situation.
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