You apply for a divorce online through the Commonwealth Courts Portal.
You must have been separated for at least 12 months, and at least one of you must have a set connection to Australia.
The divorce ends the marriage. It does not deal with property or children.
Who can apply
The only ground for divorce is that the marriage has broken down and there is no reasonable chance you will get back together.
The court does not look at why the marriage ended.
At least one of you must:
- be an Australian citizen, or
- live in Australia and treat it as your permanent home, or
- have ordinarily lived in Australia for the 12 months before you apply.
You can apply in Australia even if you married overseas, as long as one of these applies.
If you live in Western Australia, the application goes to the Family Court of Western Australia, not the Federal Circuit and Family Court.
The 12 month separation rule
You must show that you have lived separately and apart for at least 12 months before you apply.
One person can decide to separate. You do not both need to agree.
You can be separated while still living in the same home.
If you lived under one roof for any part of the 12 months, you must file extra affidavits to prove the separation. In a joint application both of you file one, and the court also asks for an affidavit from another person.
If you have been married for less than two years, you must attend counselling and file a counselling certificate with the application. If counselling is not possible, you file an affidavit explaining why.
Sole or joint application
A joint application is made by both spouses. You both sign it. No one needs to be served.
A sole application is made by one spouse. You sign it, and you must then serve your spouse with the documents.
You cannot serve the documents yourself. A person over 18, such as a friend, family member or process server, must do it.
Service must happen at least 28 days before the hearing if your spouse is in Australia, and at least 42 days before if your spouse is overseas.
Service can be by post or by hand. Post only works if your spouse signs and returns the Acknowledgment of Service.
The steps to apply
- Write down the key dates: marriage, separation, and the birth dates of any children.
- Get your marriage certificate. If it is not in English, you need a translation and an affidavit from the translator.
- Register on the Commonwealth Courts Portal.
- Complete the online Application for Divorce.
- Sign the affidavit before a lawyer or Justice of the Peace and upload it.
- Pay the filing fee and choose a hearing date. A court filing fee applies. A reduced fee or exemption may be available in some cases.
- For a sole application, arrange service and file the affidavit of service.
Children under 18
The court can only grant a divorce if it is satisfied that proper arrangements are in place for any children of the marriage under 18.
This includes children who were treated as part of the family before separation, whether or not they are your biological children.
You must explain where the children live, how they spend time with each parent, and how their schooling, health and support are managed.
If the court needs more information, it may adjourn the hearing.
The hearing and when the divorce takes effect
Hearings are held by phone before a Registrar.
You do not always need to attend. You must attend if you said you would, if your spouse opposes the application, if your spouse asks to attend where there are children under 18, or if you are asking the court to change or excuse service.
If the divorce is granted, it usually takes effect one month and one day later.
You must not remarry until the divorce has taken effect.
You can download the divorce order from the Portal once it is final.
Where people get caught
Assuming the divorce sorts out the property
It does not. Property and children are separate matters that need their own agreement or orders.
Missing the property deadline.
Once the divorce takes effect, you have 12 months to apply for property orders. After that you need the court's permission.
Serving the papers yourself.
The court will not accept service by the applicant. Use another adult or a process server.
Not explaining separation under one roof.
Without the extra affidavits, the court may not accept that you were separated for the full 12 months.
Expecting the first hearing to finish it.
If the application is incomplete, the Registrar may adjourn it and ask for more evidence.
If you or anyone in your family is at risk of harm, call 000.
Common questions
Q: Does my spouse have to agree to the divorce?
A: No. One spouse can apply alone. Your spouse can file a Response if they oppose it, for example if they say you were not separated for 12 months.
Q: How long does the process take?
A: There is no fixed time. Once granted, the divorce usually takes effect one month and one day after the hearing.
Q: Do I need a lawyer to apply?
A: No. You can apply yourself. Legal advice helps where there are children, separation under one roof, or property to settle.
Speak to a solicitor before you file. Call (02) 8062 6300.
This article is general information only. It is not legal advice for your situation.