If you are married and have separated, we can help.
Eligible for Divorce
The Family Law Act 1975, established the principle of no-fault divorce. When granting a divorce, the Court does not consider why the marriage ended.
The only ground for divorce is that the marriage broke down and there is no reasonable likelihood that the parties to a marriage will get back together.
To be eligible to apply for a Divorce, a party to a marriage must satisfy several criteria:
- Parties must have been separated for a continuous period of at least 12 months, immediately preceding the date of filing the Application for Divorce. The 12 months of separation can include periods living separated, but still under the same roof. There are no exceptions to this rule; and
- Parties need to have been married for at least 2 years before they can file an Application for Divorce. However, an Application for Divorce may be filed (provided the parties have been separated for 12 months) if the parties have not been married for at least 2 years if:
- The parties obtain a counselling certificate after attending counselling with a family counselor to discuss the possibility of reconciliation; or
- If counselling has not been attended (because there are reasons for not doing so, for example, domestic violence), the parties may seek permission from the Court to apply for a divorce ahead of this 2-year requirement.
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; or
- ordinarily live in Australia and have done so for 12 months before filing for divorce.
Separation – Divorce
The separation date
The requirement that parties to a marriage be separated for 12 months to be eligible to for divorce is a strict one.
In most cases, the separation date is clear. Generally, the separation date of a marriage occurs when one party has communicated to the other the relationship is over (and then acts in a way consistent with the relationship being over).
In some cases, the separation date is not clear because the communication about the end of the relationship was not clear, or, the relationship appeared to continue after communication about the end of the relationship.
If you are unclear about your separation date, you should obtain legal advice as soon as possible.
Separated under the same roof
Parties can remain separated but continue to reside under the same roof. However, they will need to file additional documents with the Application for Divorce to demonstrate that:
- They have been living separate lives;
- Not attending family events as a couple;
- Have separate sleeping arrangements; and
- Are living independent of each other such as cooking own meals, undertaking own washing.
Divorce – International Marriage.
If you were legally married overseas, and if that marriage would be considered a legal marriage if it had taken place in Australia, then, that marriage would be recognised in Australia.
Accordingly, in most cases, parties who were married overseas but now reside in Australia would be able to file an Application for Divorce in Australia provided they satisfy the above criteria to be Eligible for Divorce.
Divorce - Same Sex Marriage.
From 9 December 2017, same sex marriages are recognised in Australia. It does not matter whether the marriage took place:
- before or after 9 December 2017; or
- overseas (if recognised as a valid overseas marriage).
Accordingly, same sex couples can apply for a Divorce Order, provided they satisfy the above criteria to be eligible for divorce.
How to apply
To apply for a divorce an Application for Divorce form needs to be completed and filed electronically with the Federal Circuit Court or the Family Court of Australia.
If a sole application for Divorce is made, the person making the application will be required to serve a sealed copy of the Application for Divorce on the other party.
The Applicant is not permitted to serve the documents on the other party, and as such will need to engage a third party, such as a process server.
An Affidavit of Service will also need to be filed at least 28 days before the Hearing date, to satisfy the Court that service has been affected on the other party.
If service of the application on the other party is unsuccessful, an application for substituted service may be made to obtain the Courts permissions to serve the application in some other way.
If there are children of the marriage under 18 years of age, both parties will be required to attend the hearing and satisfy the Court that suitable arrangements have been made for the care and welfare of any children.
If there are no children under the age of 18 years, the parties are not required to attend a divorce hearing however, they may attend if they wish.
If a joint application for Divorce is made, the is no requirement to file an Affidavit of service.
Further, attendance at the Hearing is not required if the Application for Divorce is a joint application, even if there are children under the age of 18 years. However, parties may attend the Divorce Hearing if they wish.
Opposing the Divorce
If you have been served with an Application for Divorce and wish to oppose the Divorce because:
- The separation period has not been 12 months; or
- Appropriate arrangements have not been made for children of the marriage.
You will need to file a Response to Divorce, and you will be required to attend the Hearing. This Response needs to be filed within 28 days if served in Australia, or within 42 days if served outside Australia.
Correcting errors of fact
If you have been served with an Application for Divorce and disagree with some of the facts asserted in the Application but do not wish to oppose the application, then, you need to file a Response to Divorce detailing the facts of the application you disagree with.
If the Response to Divorce does not oppose the Divorce and there are no children under the age of 18, there is no need to attend the Divorce Hearing. However, parties may attend if the wish.
The Divorce Order
The Divorce Order becomes final 1 month and 1 day after the Hearing date. Both parties to the marriage are free to re-marry after this date.
The validity of a Will is affected once the Divorce becomes final and parties who have been divorced should seek legal advice about updating their Will.
The filing fee
The filing fee is $930.00 (as of 1 July 2020).
In some circumstances the Court will reduce the application fee (currently to $310.00) if:
- the applicant holds a government concession card; or
- financial hardship can be demonstrated.
If a sole Application for Divorce is filed and personal service of the Application for Divorce required, a quote from a Process Server will need to be obtained.
Simple Divorce - Solicitors fee
We currently offer a fixed fee of to prepare a simple Application for Divorce.
A simple Divorce is one not requiring a Court attendance such as:
- an uncontested sole Application for Divorce (without children under 18 years of age); or
- a joint Application for Divorce;
Solicitors fees are in addition to the Courts Filing fee and any fees required to be paid to the Process server.
Other Divorce - Solicitors fee
For all other applications, consideration will need to be given to the unique circumstances of an individual’s case so that an accurate fee estimate can be provided.
If you would like to speak with our Family Law Team about your divorce, please contact our office.