To apply for a divorce, you must complete an Application for Divorce

You can apply for a divorce provided that you or your spouse:

  • Regard Australia as your home and you intend to live in Australia indefinitely, or
  • You 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.

The above applies in the case of a person who got married overseas and applies for a divorce in Australia.

How to process your divorce as based on the Family Law Act 1975 Section 48

  • Proceeding is instituted by either a sole or joint application. The Application for Divorce must be filled up properly and filed with the court after payment of the fees. An Application for Reduced Fees may be filed on the grounds of financial hardships of both spouses.
  • Court must be satisfied that the parties lived separately for a continuous period of not less than 12 months immediately preceding the date of the divorce application. However, it may be possible that the parties had a separation under one roof arrangement wherein they lived under one house but have considered themselves as separated. In any case, affidavits must be attached to the application attesting to the compliance with the 12 month separation period. The application for divorce may also be electronically filed through the Commonwealth Courts Portal.
  • Under the principle of no-fault divorce the court will not delve into the reasons why the marriage ended. It must only be convinced that the marriage has broken irretrievably and that there is no reasonable likelihood that the parties will get back together.
     
  • The court will only grant the divorce if arrangements have been made for children below 18 years old.
     
  • If there are no children below 18 years, parties are not required to attend the hearings. A child of the marriage is
     
  • 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 the family prior to the final separation, like a step child or foster child.
     
  • If the divorcing parties have been married for less than two years they must either attend counselling or ask for the permission of the court to apply for divorce.
     
  •  A person who opposes the divorce may only do so upon two grounds:
     
  • Court does not have jurisdiction; or
     
  • Non-compliance with the 12 month separation period.

A Response to Divorce will be filed and the party opposing the divorce must appear in the hearing. The Response must be filed with the family law registry:

  • If served in Australia – within 28 days from receipt of the Application, or
  • If served outside Australia – within 42 days from receipt of the Application.
     
  • 8) The response to divorce may also be filed if the party agrees with the divorce but wishes to correct errors of fact in the Application.
  • 9) Provide the court with a copy of the marriage certificate. There are additional requirements if the Marriage Certificate is in a foreign language.
  • 10) If it is a sole application, a copy of the application must be served to the other spouse. A party who has taken all reasonable measures to serve the application but was unsuccessful may apply to the court for
  • Substituted service; or
  • Dispensation of service.

The divorce proceedings will not settle property and maintenance disputes or parenting arrangements between the parties. For these, the parties may enter into an agreement and file it with the court or if the parties are unable to settle among themselves they may apply to the court for orders.

The divorce will become final one month and one day after the divorce hearing. With this in mind, a party should not marry immediately as the divorce might not be issued after just one hearing. Furthermore, application for maintenance and division of property may only be filed within 12 months of the date the divorce becomes final.

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Author

Alan Weiss

22nd March, 2020

Alan Weiss developed aussiedivorce.com.au after he experienced himself how devastating divorce proceedings can be. I witnessed firsthand my own future security, and that of my familys, being destroyed by acrimonious and costly divorce litigation. I created aussiedivorce.com.au to help people avoid an experience like this and lose thousands of dollars. Instead the aussiedivorce.com.au system will assist them in getting on with their lives.