Divorce

How can you get a divorce?divorce
To apply for a divorce, you file (lodge) an application at the Federal Circuit Court

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,
  • ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

You can only apply for divorce in Australia after you have been separated for a period of at least twelve months. If you apply for a divorce you will need to show that:

  • you were married.
  • you have been separated for at least 12 months and 1 day.
  • your marriage has broken down and there is no reasonable likelihood that you will get back together.
  • you or your husband or wife are Australian residents or citizens or regard Australia as your permanent home.
  • If you apply for divorce on your own, you are referred to as the applicant. If you apply for a divorce together with your husband or wife, it is known as a joint application.

There are no time limits in which to apply for a divorce.

 

What does the Court consider?

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

The only grounds 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 a period of twelve months in order to satisfy the court that the marriage has broken down irretrievably.

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

 

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 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.The Court requires another person (not your spouse) to prepare an affidavit that contains as much information as is known to them about the separation. If you are filing a joint application, both you and your spouse need to prepare separate affidavits. If only one of you is able to file an affidavit the Court may require an affidavit from an independent person as above.

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. The issues that the court will consider are things such as whether you have separate finances, sleep in separate rooms, have sex, cook and eat separately and whether you do housework for each other.

More information can be found in the Family Law Courts publication ‘Separated but living under the one roof’ under the Publications section of the Family Law Courts website.

 

Marriages under 2 years

If you have been married for less than 2 years you must either:

  • attend counselling from a family counsellor or nominated counsellor to discuss 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.

Once your divorce is final there is a time limit of 12 months to apply to the court for property settlement or spousal maintenance.

More information can be found in the Family Law Courts publication ‘Have you been married less than two years’ .

 

Do you have to attend Court?

If you do not have children, you do not need to attend the hearing.

If there are children you have children under 18 and are applying on your own, you must attend the Court. However, if you have children under 18 and you make a joint application, you do not have to attend the Court.
If you have children under the age of 18 years and are applying on your own, you must come to the Court for your hearing at the time and date entered on your application form.

You do not have to attend the hearing if:

  • you are making a joint application together with your spouse; and
  • you have requested in the application that the application be heard in your absence. However, in special circumstances the Court may still require you to attend the application may be adjourned to enable your attendance.

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.

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.

 

Can I keep my address confidential?

If you are seeking a divorce and you are in fear of your husband knowing your whereabouts, then you can use a post office box number, an email address or a friend’s or relative’s address on your divorce application. You can refuse to give any address whatsoever although you will have to lodge an affidavit explaining to the court your reasons for not wanting to reveal your address to your husband. Legal advice should be sought about the content of the affidavit.

 

What if you can’t find your spouse?

If you do not know the whereabouts of your spouse, you can apply to the Court for the divorce to go ahead. However, you must show the Court that you have tried to contact 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.

More information can be found in the Family Law Courts publication ‘Are you having trouble serving your divorce application’ under the Publications section of the family law website.

 

What if you plan to remarry?

You should not assume that the divorce will be granted at the first hearing. For example, you may be told by the Court at the hearing that you will need to provide more information.

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 the Certificate of Divorce to the marriage celebrant before the wedding can take place.

You cannot remarry until your divorce becomes final. It is unwise to make arrangements to remarry until the Court has fixed the date on which the divorce is to become final.

 

How much will it cost?
You must pay a fee when you file for divorce. Information about current fees can be found on fees section of family law courts website

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. More information about fee reductions can be found on family law courts website

Talk to registry staff about details of fees and to obtain fee waiver/exemption forms.

 

What if you were married overseas?

You can apply to the Federal Circuit Court for divorce if you were married overseas if either you or your spouse
– are Australian citizens or residents, or
– regard Australia as your home and intend to live indefinitely in Australia .
– ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

You will need a copy of your marriage certificate. If your marriage certificate is not in English, you will need:
– an English translation of the marriage certificate, and
– an affidavit from the translator which:

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

More information can be found in the Family Court of Australia form Affidavit Translation of Marriage Certificate under the forms section of the Family Law Courts website.

 

Can you oppose a divorce application filed by your spouse?

If you have been separated for more than 12 months, there are few opportunities to oppose an application for divorce.

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.

However, if you choose to oppose a divorce application, you complete and file the a Response to Divorce application 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.

Ultimately however if the court is satisfied that a reconciliation is not possible, and you have been separated for 12 months, a divorce will be granted. Seek legal advice about this immediately as you must respond within a certain time period.

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

Talk to Court staff about which form to use.

 

What if the application has errors of fact?

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.

 

When should I file the Response to Divorce?
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.

 

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 about 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 Family Relationships Website 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.

More information can be found under the Topics ‘Children’s Matters’ and ‘ Property and Money Matters’ on the Family Law Courts website

 

Do-it-yourself Divorce Kits

The Family Law Courts has a Divorce Kit available which include the application form and a guide on how to complete the form. Once you have completed the form, it can be filed in any registry (office) of the Family Court of Australia which is the office for the Federal Magistrates Court.
Applications for Divorce (and certain accompanying documents) can now be electronically filed through the Commonwealth Courts Portal (www.comcourts.gov.au)
More information about Divorce can be found in bookletSeparation a guide for women prepared by Women’s Legal Service, Qld.