DIVORCE (FAQ)

You can glance our frequent asked questions and answers about the legal aspects of splitting up and divorce in general by clicking on each of the topics below: 

CAN I APPLY FOR A DIVORCE?

You can apply for a divorce in Australia if either you or your spouse:

• regard Australia as your home and intend to live in Australia indefinitely, or
• are an Australian citizen by birth, descent or by grant of Australian citizenship, or
• ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

You need to satisfy the Court that you and your spouse have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life. It is possible to live together in the same home and still be separated.

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COURT CONSIERATIONS

The Family Law Act 1975 established the principle of no-fault divorce in Australian law. This means that a court does not consider why the marriage ended.

The only ground for divorce is that the marriage has broken down irretrievably. That is, that there is no reasonable likelihood that you will get back together. You must have been separated for at least 12 months and one day in order to satisfy the Court that the marriage has broken down irretrievably.

If there are children aged under 18, a court can only grant a divorce if it is satisfied that proper arrangements have been made for them.

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APPLICATION FOR A DIVORCE COST?

You must pay a fee when you file for divorce. Application for Divorce in the Federal Circuit Court is $845 (excluding legal fees). This fee is set by regulation and is generally only adjusted every two years.

The fee does not apply in some cases; for example, if you hold certain government concession cards or you are experiencing financial hardship. To be eligible for a fee exemption or waiver for a joint application, both you and your spouse must qualify for the exemption or waiver. If only one spouse qualifies for the exemption or waiver, then the full fee applies.

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CAN I OPPOSE A DIVORCE APPLICATION?

If you have been separated for more than 12 months, there are few opportunities to oppose a divorce application. You can only oppose the divorce where:

• there has not been 12 months separation as alleged in the application, or
• the court does not have jurisdiction.

If you do not want the divorce granted, you must complete and file a Response to Divorce and appear in person on the hearing date. You need to set out the grounds on which you seek the dismissal in the Response to Divorce.

If you file a response, you should attend the divorce hearing. If you do not attend, the Court may decide the divorce application in your absence. If it is difficult for you to attend in person, you may ask the Court to appear by telephone.

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WHAT IF THE DIVORCE APPLICATION HAS ERRORS?

If you want the divorce granted but disagree with the facts in the Application for Divorce, you may file a Response to Divorce. You need to state which facts you disagree with in the Response to Divorce. The errors might, for example, be that dates of birth are incorrect or the details regarding the children are no longer correct. You should attend the divorce hearing.

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WHEN SHOULD I FILE THE RESPONSE ?

If you want to file a Response to Divorce, you need to file it at a family law registry:

• if served in Australia - within 28 days of the application being served on you, or
• if served outside of Australia - within 42 days of the application being served on you.

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DO I HAVE TO ATTEND THE DIVORCE HEARING?

If there is no child of the marriage aged under 18 years, you are not required to attend the court hearing. This applies for both sole and joint applications.

If you have made a joint application and there is a child of the marriage aged under 18 years, neither you nor your spouse are required to attend the court hearing.

If you have made a sole application and there is a child of the marriage aged under 18 years, you must attend the court hearing unless circumstances prevent you from attending.

If a respondent has completed and filed a Response to Divorce, he or she should attend the divorce hearing. If you do not attend, the Court may decide the divorce application in you absence.

If a respondent has, in a Response to Divorce, opposed the application, the respondent must appear in person on the hearing date.

If it is difficult for you to attend in person, you may ask the Court to appear by telephone. You must request in writing a hearing by telephone if you are unable to attend because of reasons such as distance from the Court or incapacity.

A child of the marriage includes:

• any child of you and your spouse, including children born before the marriage or after separation
• any child adopted by you and your spouse, or
• any child who was treated as a member of your family prior to your final separation; for example, a step-child or foster child.

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SEPARATION UNDER THE ONE ROOF?

It is possible for you and your spouse to be separated but to continue 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.

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MARRIED FOR LESS THAN TOW YEARS

If you have been married less than two years and want to apply for a divorce, you must either:

• attend counselling with a family counsellor or nominated counsellor to discuss the possibility of reconciliation with your spouse, or
• if you have not attended counselling, seek permission of the Court to apply for a divorce.

The two years are calculated from the date of the 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.

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I MARRIED OVERSEAS

If you were married overseas, you can apply for a divorce in Australia if either you or your spouse:

• 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.

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 which:
• states his or her qualifications to translate
• attaches a copy of the marriage certificate
• attaches the translated marriage certificate
• states that the translation is an accurate translation of the marriage certificate, and states that the attached copy of the marriage certificate is a true copy of the marriage certificate translated.