Basic Legal Steps to Getting a Divorce in Australia
1. Complete an Application for Divorce
You (or your lawyer if you have one) can use:
The Divorce kit includes step-by-step instructions on how to complete the application.
2. Sign
Swear or affirm and sign the Application for Divorce before a lawyer, Justice of the Peace or other person authorised to witness affidavits in your state or territory.
3. Photocopy
Make two photocopies of the completed and signed Application for Divorce and any supporting documents.
4. File
File, by hand or post, at a family law registry:
- the original and two copies of the Application for Divorce, and
- a copy of your marriage certificate.
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. As at 1 October 2006, the fee to file an Application for Divorce in the Federal Magistrates court is $405. This fee is set by regulation and is generally only adjusted every two years. More information can be found under the Fees section of this website, including an explanation of different payment methods.
If you were not born in Australia and intend to rely upon your Australian citizenship as a ground to apply for a divorce in Australia, you must also file a copy of your Australian citizenship certificate, Australian passport or other proof of citizenship.
5. Receive a hearing date and documents
The court gives you a file number and a time and date for a hearing.
If you jointly apply, the court will keep your original Application for Divorce and give you and your spouse a sealed copy of the application and an information brochure 'Marriage, Families and Separation'.
If you apply on your own, the court will keep your original Application for Divorce and give you two copies of the sealed application and information brochure 'Marriage, Families and Separation'.
6. Serve papers
If you applied on your own, you must serve a sealed copy of the Application for Divorce and information brochure on your spouse:
- At least 28 days before the hearing if your husband or wife is in Australia
- At least 42 days before the hearing date if your husband or wife is overseas.
More information can be found in the Divorce service forms and kit under the Forms section of the Family Law court Website.
7. Attend the hearing
If there is no child of the marriage aged under 18 years, you are not required to attend the court hearing. This applies for 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 are 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. You may be able to attend by telephone.
8. Outcome of hearing
If your divorce application is successful, the court will grant a divorce order. The order becomes final one month and one day after it is made, unless it is shortened by order of the court.
Once the divorce order becomes final, the court will send a Certificate of Divorce to you and your spouse individually, or to your lawyer if you have one.
Do not assume that 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.
* Acknowledgement: This information has been taken, with permission, directly from the Family Law court of Australia Website.
Do I Have To Go To Court?
If you are making a joint application, you do not need to go to court. If your making a sole application and your children are under 18 and were part of the family prior to separation, then you must go to court unless there are special circumstances.
How Long Does It Take To Get A Divorce?
Once the Application for Divorce has been filed it will take at least 4 months to obtain a Divorce Certificate. It could take longer if you are making a sole application and experience difficulties in serving your spouse.
Don't forget you also must have been separated for at least 12 months. Therefore, the quickest possible time to complete this process is approximately 16 months.
Can A Divorce Be Opposed?
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 the Response to Divorce.
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