Applying for a divorce.
The steps, the documents and the time limits, explained in plain words.
A divorce is the court order that ends a marriage.
It is granted by the Federal Circuit and Family Court of Australia.
The court does not look at why the marriage ended.
It looks at whether the legal requirements are met.
What the court needs to see
- The marriage has broken down and there is no reasonable likelihood you will resume married life.
- You have lived separately and apart for at least 12 months. The court's own example shows filing from 12 months and one day after the date of separation.
- At least one of you is an Australian citizen, regards Australia as home and intends to stay indefinitely, or has ordinarily lived in Australia for the 12 months before filing.
- You file a copy of your marriage certificate. If it is not in English, a translation and a translator's affidavit are needed.
- If there are children under 18, the court must be satisfied that proper arrangements are in place for them, or that there is another good reason to grant the divorce.
If you separated but still lived together
You can be separated while living in the same home.
If you lived under one roof at any time in the 12 months before filing, you must file an affidavit showing how the marriage changed.
In a joint application, both of you file an affidavit.
The court says a third person should also file an affidavit that supports your evidence.
If you have been married for less than two years
You must attend counselling with your spouse and file a counselling certificate with your application.
A counsellor completes the certificate.
To book, the court refers people to the Family Relationship Advice Line on 1800 050 321.
If you cannot attend counselling, you must file an affidavit that explains why, or sets out any special circumstances.
Applying on your own or together
- Joint application. You both sign. One of you prepares the application and the other reviews it. No service is needed.
- Sole application. You apply on your own and you must serve the application on your spouse.
Either way, the application is signed in an affidavit before a lawyer or a Justice of the Peace.
How the application is filed
- Register on the Commonwealth Courts Portal.
- Complete the application online. Once it is locked, it cannot be changed.
- Upload the signed affidavit for eFiling.
- Pay the court filing fee. A reduced fee may apply in some cases.
- The court sets a hearing date when you file. It cannot be brought forward.
Every party must read the court brochure Marriage, Families and Separation. A sole applicant must include it when serving.
Serving your spouse in a sole application
You cannot serve the documents yourself.
A friend, relative or process server over 18 can serve by hand. Service by post is only suitable if your spouse will sign and return the Acknowledgement of Service.
The documents must be served at least 28 days before the hearing, or at least 42 days if your spouse is overseas.
You then file proof of service, such as an affidavit of service.
If you cannot find your spouse, you may ask the court for substituted service or to dispense with service.
Do you need to attend
Divorce hearings are held electronically, by phone, before a Registrar.
You must attend if:
- you said in the application that you would attend
- you made a sole application and there are children under 18
- your spouse files a Response opposing the divorce
- you are asking for substituted service or for service to be dispensed with.
The court says attending is advisable if you need to give extra evidence, such as about separation under one roof.
When the divorce becomes final
If granted, the divorce becomes final one month and one day after the order, unless the court orders otherwise.
You must not remarry until then.
The order can be downloaded from the Commonwealth Courts Portal after it becomes final.
Where people get caught
Filing one day too early
The 12 month separation period must be complete before you file. In the court's example, a couple who separated on 7 November can file from 8 November the next year.
Serving the documents yourself
A sole applicant cannot serve their own spouse. Service must be done by another adult, by post with a signed acknowledgement, or through a lawyer who agrees to accept it.
Missing the service deadline
Service must be at least 28 days before the hearing, or 42 days for a spouse overseas.
Thinking the divorce settles property
It does not. The 12 month time limit for property claims starts once the divorce is final.
Common questions
Does my spouse have to agree to the divorce?
No. You can make a sole application. Your spouse can file a Response if they oppose it, and the court then decides.
Will the court ask why the marriage ended?
No. The only ground is that the marriage has broken down. The court does not consider why.
Can the divorce be granted at the first hearing?
It may be, but the court says you should not assume so. More evidence may be needed and the hearing may be adjourned.
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