divorce is the legal end of a marriage
can i apply for a divorce?
Divorce is the legal end of marriage. The only ground for divorce is the irretrievable breakdown of the marriage. It does not matter who was at fault or whether one spouse does not want a divorce.
To apply for a divorce, you must complete an application for divorce and file it with the Court and pay the application fee. You may be eligible for a fee exemption or waiver.
If you apply for a divorce together with your spouse, it is a joint application, and you and your spouse are joint applicants.
If you apply for a divorce by yourself, you are a sole applicant, and your spouse is the respondent.
You may prepare your own divorce application or ask a lawyer to do it for you. The Application for Divorce Kit has instructions for completing the application and filing it. It includes an Application for Divorce form.
eFiling of divorce applications now available Applications for Divorce (and certain accompanying documents) can now be electronically filed through the Commonwealth Courts Portal. For more information see the User Guide to eFiling Divorce Applications in Family Law
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 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.
You also need to pay a fee or request an exemption or waiver of the fee by filing an Exemption form or an Application for Waiver of Court Fees form. This fee is set by regulation and is 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.
The following fees apply from 1 July 2013. The fees are set by Federal Government regulations.
$800 Application for divorce (excluding legal fees)
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 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.
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 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 may attend the divorce hearing.
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.
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 to 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 is 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 your absence.
If a respondent has, in 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. See Rule 25.11 of the Federal Circuit Court Rules 2001.
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 before your final separation; for example, a step-child or foster child.
We are getting divorced - will decisions about future arrangements for our children, property and maintenance be made at the same time?
The granting of a divorce does not decide issues about property and maintenance or parenting arrangements for your children. If you want to make arrangements for these issues you can:
make an agreement with your spouse and file it with a court, or seek orders from a court, where you and your spouse cannot reach an agreement.
For parenting cases, you also have the option to make a parenting plan. For more information about parenting plans, go to www.familyrelationships.gov.au or call 1800 050 321.
If you want to apply for maintenance for yourself or a division of property, you must file a separate application within 12 months of the date the divorce becomes final. Otherwise, you will need the Court’s permission to apply.
I have applied for a divorce, is it safe to set a wedding date for my new marriage?
You should not plan to remarry until the divorce order is finalised. In most cases, this is one month, and one day after the divorce hearing, however, you should not assume the divorce will be granted at the first court hearing. For example, you may be told at the hearing that you need to provide more information.
If you intend to remarry, you must give the marriage celebrant a Notice of Intended Marriage at least one month before the wedding date, and comply with other requirements of the Marriage Act 1961.
As soon as the divorce order is granted, the marriage celebrant may accept the Notice of Intended Marriage. You must show a copy of the divorce order to the marriage celebrant before the wedding can take place.
What is meant by 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 a 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.
If you are applying for divorce by yourself, you need to prepare an affidavit. If you are filing a joint application, both you and your spouse need to prepare separate affidavits. The Court also requires another person (not your spouse) to prepare an affidavit that contains as much information as is known to them about the separation. This requirement applies to both sole and joint applications. In your affidavit, you need to prove that there has been a change in the relationship, gradual or sudden, demonstrating you and your spouse have separated.
We want to divorce but have been married less than two years. We understand we have to do certain things, what are they?
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.
If you were married overseas, you could 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 of 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.
I can’t find my spouse to serve a divorce application, what do I do?
If you have made a sole application, you need to serve the divorce application on your spouse. If you have taken all reasonable steps to serve your divorce application on your spouse and you are unable to do so, you can apply to the Court for:
- substituted service, or
- dispensation of service